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.
- (a) By accepting this Agreement or using the Services, you warrant, represent and, where permitted by law, state under penalty of perjury that the following statements are true, accurate and complete:
- (i) You are of full legal age to access, view and use all the Content (as defined below), in accordance with the laws of the jurisdiction in which you reside;
- (ii) You believe you have the inalienable right to read and/or view any type of material you choose;
- (iii) You are aware of the standards of your local community with respect to the Content and all materials offered by the Services; You are familiar with the materials and the Content offered, provided or made available by the Services; and you represent, warrant, and certify that the links, information, and use of materials on the Services do not violate any standard or law that applies to you;
- (iv) You recognize and agree that we and the Services have no control over the content of websites which are listed or linked from or through the Services, and that we accept no responsibility for the content of the other sites; and
- (b) If you are using the Services on behalf of a corporation or other organization, you represent and warrant that you have full legal authority and capacity to enter into this Agreement on behalf of such organization and bind it to this Agreement. All references to “you” throughout this Agreement will include such organization, jointly and severally with you.
4. Proprietary Rights.
- (a) Content. "Content" means all visual, audible or perceivable materials and content, including written content, text, editorial content, graphics, processes, audiovisual materials, multimedia elements, photographs, illustrations, designs, logos, videos, music, sound recordings, flash animation, reports, documents, records, software, information, formulae, patterns, data, object code, source code, technologies, trademarks, service marks, URL's, domain names, trade dress, get up or distinguishing guise and any other work, whether proprietary or subject to copyright or not.
- (b) Third-Party Content. Content accessed or available through the Services or the Internet may be owned by parties other than you or us (collectively, "Third Party Content") and may be subject to or protected by applicable copyrights, trade-marks, patents, trade secrets or other proprietary rights owned by or licensed to third parties. Nothing in your use of the Services or this Agreement grants you any right, title or interest in or to Third Party Content except for the limited right to use the Services as set out in this Agreement.
- (c) Our Proprietary Rights and Title. Except where expressly stated otherwise, all right, title and interest in and to the Services and to all our Content forming any part of the Services ("Our Content") is wholly owned and fully vested in us, our licensors or our suppliers and is protected by applicable copyright, trade-mark, invention, patent, trade secret or other proprietary rights and laws. All trademarks, service marks, and trade names on or with respect to the Services are trademarks or registered trademarks of us or of their respective owners. You agree that Our Content is licensed conditional on and subject to the terms and conditions of this Agreement, including all disclaimers and limitations of liability herein. Nothing in your use of the Services or this Agreement grants you any right, title or interest in or to the Services or Our Content except the limited right to use the Services or our Content as set out in this Agreement. This Agreement is for licenses and services and is not a sale of goods, and you do not own or have any proprietary right in or to the Services or Our Content. Without limitation, unless otherwise expressly authorized by us in writing, you agree not to
- (i) copy, modify, deep link, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer any right or interest in Our Content;
- (ii) modify, reproduce, retransmit, distribute, disseminate, sell, publish, reverse engineer, create derivative works or other derivations of, broadcast, circulate or in any way exploit any of the Services or Our Content to anyone without our express prior written consent;
- (iii) reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to discover the source code of the Services or Our Content;
- (iv) remove any proprietary notices or labels on or in the Services or Our Content; or
- (v) allow any other person or entity to engage in any of the foregoing.
- Any unauthorized reproduction or redistribution of the Services and Our Content is expressly prohibited and may result in severe civil and criminal penalties. Violators of our rights will be prosecuted to the full extent of the law.
- (d) Your use of the Services, including without limitation the AppColony software, as an end user is governed by this Agreement, including all other policies, notices, licensing and legal documents that you, as the end user are consenting to/agreeing to, by use of the Services.
- (e) If you do not consent to, or not accept or disagree with any of the terms of the terms and conditions in this Agreement, you must cease all use/utilization of the Services immediately.
- (f) Your Content. We do not claim ownership of any Content that you post, upload, input, provide, submit or otherwise transmit to us, or any third party, using the Services (collectively, “Your Content”); however, by posting, uploading, inputting, providing, submitting, entering or otherwise transmitting Your Content to us or any third party using the Services, you agree, without limitation, to the following terms and conditions:
- (i) License to Us. You grant to us a royalty-free, non-exclusive, worldwide, fully paid-up limited and non-exclusive license to use, copy, distribute, transmit, display, edit, delete, publish and translate Your Content to the extent reasonably required by us to provide the Services to you and our other customers or to ensure compliance with or to enforce this Agreement,
- (ii) Your Representations and Warranty to Us. You confirm, represent and warrant to us that you have all rights, titles and interests, as well as the power and authority necessary, to grant the license to Your Content set out above,
- (iii) Indemnity of Us. You will indemnify, defend and forever save us harmless from and against any liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including legal costs on a solicitor and own client basis of any amount paid to settle any action or to satisfy a judgment or expenses of any kind and character whatsoever incurred by us relating to or arising from Your Content, including instances where the Your Content (a) infringes, or is alleged to infringe rights of any third party or any Third Party Content or other third-party intellectual property rights, or (b) is inappropriate, profane, defamatory, infringing, discriminatory, offensive, obscene, indecent, illegal or unlawful, and
- (iv) Identity. You permit us to publish your name, and anyone else’s name associated/connected with Your Content.
- (g) Responsibility for Your Content. You acknowledge and agree that you are exclusively responsible and liable for determining the accuracy, suitability, harmfulness or legality of Your Content.
- (h) Compensation for Your Content. You will not receive compensation for Your Content.
- (j) Feedback. All right, title and interest in and to comments, ideas, suggestions and impressions of the Services given by you to us (collectively, "Feedback") is and shall be deemed to be our property and, by submitting Feedback to us, you agree that you thereby assign to us all right, title and interest to such Feedback to us.
- (k) Public Transmission and Caching. You acknowledge and agree that the technical processing and transmission of the Services, including Your Content and other Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices, and that such Content may be subject to "caching" or other technical processing or transmission policies and procedures by us or at intermediate locations on the internet.
- (l) Deletion of Your Content. If you delete the Account to which Your Content is connected, or terminate this Agreement or any agreement or sub-agreement with us, you acknowledge and agree that we may retain a copy or copies of Your Content for archival or compliance purposes or to otherwise provide the Services, and your license to us as set out above shall survive any deletion of Account or termination.
- (m) No Obligation to Post Your Content. We have no obligation to post or use any of the Your Content.
- (n) Right to Remove Your Content. We have the right at any time, and from time to time, to remove Your Content, or any portion thereof, from the Services at our discretion, and without any liability or payment of compensation or damages to you.
- (o) Limitations on Usage. Materials uploaded to or transmitted via the Services may be subject to limitations on usage, reproduction and/or dissemination, and you are responsible for adhering to all such limitations.
6. Registration and Membership.
- (a) In order to enjoy all the benefits of the Services, you must register and become an administrative member or an individual member (as defined below) of the Services. You may visit a website or mobile application of the Services without registering. An initial account will be created by us for each user account (an “Initial Account”). This Initial Account is an administrative account created for all accounts, including individual accounts and administrative accounts (as defined below).
- (c) An administrative user designated by your company or organization will have control over your Individual Account (the “Administrative User”). The Administrative User of the Services is authorized to set up a general account for the Services (an “Administrative Account”) for your company or organization.
- (e) The Administrative Account will hold and control each Individual Account for your company or organization. The Administrative User will have authority regarding the administration of your Individual Account. For example, the Administrative User may determine who can create and register an Individual Account, number of Individual Accounts, and set the options and restrictions for each Individual Account.
- (f) The Administrative user for your account shall have full control over your Individual Account. This means that the Administrative User shall have the right to:
- (i) terminate, close or alter your individual Account at any time; and
- (ii) to request and receive computer and user information related to your Individual Account.
7. Your Account and Account Use.
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:
- (a) Responsibility. The individual user, you, are solely responsible for
- (i) your Account and the maintenance, confidentiality and security of your Account and all passwords related to your Account, and
- (ii) any and all activities that occur under your Account, including all activities of any persons who gain access to your Account with or without your permission
- (b) Notification. You agree to immediately notify us of
- (i) any unauthorized use of your Account, any service provided through your Account or any password related to your Account, or
- (ii) any other breach of security with respect to your Account or any service provided through it, and
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;
- (c) Accuracy. You agree to provide true, current, accurate and complete customer information as requested by us or our agents from time to time and you agree to promptly notify us of any changes to this information as required to keep such information held by us current, complete and accurate. You agree to not use any other person's Account at any time, unless you have received direct written consent from the other Account holder;
8. Administrative Member Billing and Payments.
- (a) Paying By Credit Card. Unless otherwise specified by us, you shall pay for access to the Services by credit card. When you become an Administrative Member, we will save your payment information and charges which will automatically be charged to your saved card, unless you notify us prior to such charges being made. We accept the following credit cards: American Express, VISA, and MasterCard.
- (b) Third Party Charges. We are not responsible for any fees or charges your bank or credit card issuer may apply. If your credit card issuer reverses a charge to your credit card, we may bill your account directly and seek payment by any other method we may choose;
- (c) Monthly Dues. You agree that, as an Administrative Member, you will be charged a monthly amount based on your purchased package, in accordance with and subject to this Agreement.
- (d) As an Individual Member, you shall not be billed for using the Services or be required to make payments relating to the use of the Services.
9. Newsletters and Promotions.
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.
10. Services Limitations.
- (a) The Services depend on the Internet, including networks, cabling, facilities and equipment that is not in our control. Accordingly (i) any representation made by us regarding access performance, speeds, reliability, availability, use or consistency of the Services is on a “commercially reasonable efforts” basis, (ii) we cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, and (iii) data, messages, information or materials, including Content, sent over the internet may not be completely private due to circumstances beyond our control, and your anonymity is not guaranteed.
- (b) You agree to defend, indemnify, and forever hold us and our employees, directors, shareholders, members, officers, agents, subsidiaries, and affiliates harmless from any and all claims, losses, damages, causes of action, liabilities and expenses (including legal fees on a solicitor and own client basis) related to or arising out of any software malfunctions or website service interruption, including without limitation claims made by third parties related to your use of the Services.
11. Acceptable Use and Prohibitions.
- (a) Acceptable Use (Things You Can do). Unless otherwise specified, the Services are for your personal and non-commercial use. The Services contain message or communication facilities designed to enable you to communicate with others. You agree to use the Services only to post, send, and receive messages and material and Your Content that are not prohibited under this Agreement or under applicable laws, legislation and regulations.
- (b) Lawful Use (Things You Must Do). You will ensure that
- (i) you only use the Services for lawful purposes, and
- (ii) if at any time you become aware of any violation, by any person or entity, of any part of this Agreement, you will immediately notify us and provide us with assistance, as requested, to stop or remedy such violation.
- (c) Prohibited Conduct (Things You Must Not Do). Without limiting the generality of any other restriction in this Agreement, you agree that you will not, in connection with the Services, directly or directly do or permit any of the following:
- (i) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products, or services obtained from the Services;
- (ii) engage in contests, pyramid schemes, chain letters, spamming, or any duplicative or unsolicited messages (commercial or otherwise);
- (iii) post, upload, reproduce, distribute or otherwise transmit any Content that
- (A) constitutes unauthorized or unsolicited commercial communications, junk or bulk communications or other "spam" (whether or not using e-mail services, including instant messaging, blog or comments) or is otherwise duplicative or unsolicited,
- (B) contains a virus, cancelbots, corrupted files, trojan horse, worm or other harmful, disruptive, malicious or surreptitious software or program that may damage the operation of another computer or property of another,
- (C) is defamatory, infringing, or unlawful,
- (D) is inappropriate, profane, obscene, or includes indecent materials or information without suitable or lawfully-required access controls (which controls shall in no event be our responsibility),
- (E) gives rise to civil liability, or otherwise violates the rights or assists others to violate the rights of us or any third party, such violations including engaging in copyright infringement, invasion of privacy, trademark infringement or defamation, or
- (F) constitutes a criminal or quasi-criminal offence, or a civil tort, or otherwise engages in or assists others to engage in any criminal or quasi-criminal offence or a civil tort, including communicating hatred, pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography,
- (G) scans or probes another computer system, obstruct or bypass computer identification procedures or engage in unauthorized computer or network trespass without the express permission of the owners of such computer systems,
- (H) forges headers, "spoofs", or otherwise manipulates any protocols or identifiers used in any system or protocol in such a manner to disguise the origin of any data or Content transmitted using the Services, or
- (I) impersonates or falsely represents your association with any person, including a representative of us;
- (iv) extract, gather, collect, or store Personal Information about others, including email, from the Services for any purpose, including without limitation, any commercial purpose;
- (v) attempt to gain unauthorized access to the Services, other Accounts, computer systems, or networks connected to the Services through hacking, password mining or any other means;
- (vi) attempt to gain materials or information through any means not intentionally made available through the Services;
- (vii) use the Services in any manner which could damage, disable, overburden, or impair the Services, the networks connected to the Services, or interfere with any other party’s use and enjoyment of the Services;
- (viii) violate any code of conduct or other guidelines which may be applicable to the Services;
- (ix) violate any applicable laws or regulations; create a false identity for the purpose of misleading others;
- (x) use, download, or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof;
- (xi) download any file posted by another user of a communication service that you know, or reasonably should know, cannot be legally distributed in such a manner;
- (xii) disable or circumvent any access control or related process or procedure established with respect to the Services;
- (xiii) advertise or offer to sell or buy any goods or services for any business purpose unless such the Services specifically allow such messages and such messages are permitted under this Agreement; or
- (xiv) sublicense, share, resell, reproduce, copy, distribute, redistribute, or exploit for any commercial purposes (except for your internal business purposes), any portion of, use of or access to, any website or mobile application of the Services, except where expressly authorized by us.
- (d) No Liability. We do not control or endorse the Content, messages, or information found in or provided or accessible via the Services, and therefore we specifically disclaim any liability with regard to the Services, and any actions resulting from your use of the Services.
- (e) Our Remedies. Without limiting any of our rights, we may suspend, restrict or terminate your use of the Services without notice if, in our sole and absolute discretion, we determine or believe that you have violated any of the acceptable use rules set out above or any term or condition of this Agreement.
12. Use of Client Logos and Business Names.
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.
13. Disclaimers, Limits of Liability, Indemnities, Release.
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
- BY VIEWING, ACCESSING, AND/OR USING THE SERVICES, AND BY ACCEPTANCE OF THIS AGREEMENT, YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY ECONOMIC LOSS, COMMERCIAL LOSS, INCONVENIENCE, LOSS OF USE OR DOWNTIME, LOSS OF TIME, DATA, GOODWILL, REVENUES, PROFITS, OR SAVINGS; OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM YOUR USE OF THE SERVICES.
- YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS APPCOLONY, ITS EMPLOYEES, DIRECTORS, SHAREHOLDERS, MEMBERS, OFFICERS, AGENTS, SUBSIDIARIES, AND AFFILIATES FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, LIABILITIES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) RELATED TO OR ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION CLAIMS MADE BY THIRD PARTIES RELATED TO YOUR USE OF THE SERVICES.
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.
18. Waiver of Rights and Remedies.
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.
19. Termination/Access Restriction.
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.
20. Modifying Subscription.
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.
21. Cancellation and Termination.
- (a) The Account owner is responsible for cancelling your Account, and can cancel the Account by contacting us directly. Once you cancel your Account you will lose access to all of Your Content, and we preserve the right to delete all such Content in the normal course of operation. Your Content cannot be recovered once your Account is cancelled. If you cancel the Services before the end of your current paid-up subscription period, your cancellation will take effect immediately and you will not be charged again.
- (b) Regardless of your billing cycle, there are no refunds or credits for partial months of the Services, plan downgrades, or refunds for unused time if you close your Account before the end of your subscription period. Downgrading your plan may cause the loss of content, features, or capacity of your Account and we do not accept any liability for such loss. We reserve the right to contact you about special pricing or other promotional offers.
22. Governing Law.
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.
23. Assignment and Inurement.
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.
24. No Agency.
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.
25. Force Majeure.
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.
27. Entire Agreement.
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.
28. English Language.
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.