MakeShift Terms of Service
Updated: February 14, 2017
1. Acceptance of Terms.
The following terms of service are between you and Makeshift and Makeshift’s parent company AppColony Inc. (“Makeshift” “AppColony”, “we” “us” “our”) and constitute a legal agreement that governs your use of the Makeshift websites, web pages, software, services and mobile applications, as well as all services of AppColony (collectively referred to as the “Services”). By accessing or using the Services, you signify that you have read, understand and agree to be bound by these terms and conditions (“Terms of Service”) and any operating rules or policies that may be posted on our website located at http://www.makeshift.ca, or on an Makeshift mobile application from time to time, all of which are hereby incorporated by reference into the Terms of Service. You may only create an Account (defined below) after reading and accepting the Terms of Service.
PLEASE READ THE TERMS OF SERVICE CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE, BUT ARE NOT LIMITED TO, VARIOUS LIMITATIONS AND EXCLUSIONS, AND INDEMNITIES.
Your use of the Services is subject to the Terms of Service. If you are not willing to be bound by each and every term or condition, violate any of the terms or conditions, or if any representation made herein by you is not true, you may not use, and must cease using, the Services.
Terms of Service
By using the Makeshift websites, web pages, and mobile applications (“Service”), all services of AppColony Inc. (“AppColony”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). AppColony reserves the right to update and change the Terms of Service from time to time without notice.
Violation of any of the terms below will result in the termination of your Account and access to the Service. While AppColony prohibits such conduct and Content on the Service, you understand and agree that AppColony cannot be responsible for the Content posted on the Service and you nonetheless may be exposed to such materials. You agree to use the Service at your own risk.
2. Amendment to the Terms of Service.
We reserve the right to amend the Terms of Service, including but not limited to the charges associated with the use of the Services, at any time without notice to you, but we will use reasonable efforts to publish each amendment before such amendment becomes effective. We will ensure that the latest, fully-amended version of the Terms of Service is published on our website at http://www.makeshift.ca/terms/. You are responsible for regularly reviewing the Terms of Service to obtain timely notice of such amendments. If any amendment is unacceptable to you, you may terminate the Terms of Service as set out in the Terms of Service. If you continue to use the Services after the effective date of each amendment, you will be conclusively deemed to have accepted such amended version of the Terms of Service.
3. Legal Capacity.
- (a) By using the Services, you agree under penalty of perjury to make the following statements:
- (i) I am of legal age to view material discussed above, in accordance with the laws of the jurisdiction in which I reside;
- (ii) I believe I have the unalienable right to read and/or view any type of material I choose;
- (iii) I am aware of the standards of my local community with respect to the materials offered by the Services; I am familiar with the materials offered by the Services; and I 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 me;
- (iv) I recognize that the Services have no control over the content of websites which are listed or linked on it and that it takes 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 the ability to enter into the Terms of Service on behalf of such organization and all references to “you” throughout the Terms of Service will include such organization, jointly and severally with yourself.
5. 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 other 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.
6. Your Account and Account Use.
In Connection with your Administrative Account or Individual Account (collectively referred 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. AppColony is not liable for any loss 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 one else’s Account at any time, unless you have received direct written consent from the Account holder;
7. Administrative Member Billing and Payments.
- (a) Paying By Credit Card. Unless otherwise specified by AppColony 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 another method including a mailed statement;
- (c) Monthly Dues. You agree that, as an Administrative Member, you will be charged a monthly amount based on the purchased package, in accordance with and subject to this section.
- (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.
8. Newsletters and Promotions.
As an Administrative Member or as an Individual Member (collectively referred to herein as a “Member”), you agree to receive monthly newsletters and emails promoting any special offer(s), including third party offers.
9. 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 sent over the internet may not be completely private, and your anonymity is not guaranteed.
- (b) 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 any software malfunctions or website service interruption, including without limitation claims made by third parties related to your use of the Services.
10. 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 in your place of employment use (collectively, the “Communication Services”). You agree to use the Communication Services only to post, send, and receive messages and material that are proper and, when applicable, related to the Communication Services or Services.
- (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 the Terms of Service, 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 the Terms of Service, you agree that you will not, in connection with the Communication Services or 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 (defined below) that
- (A) is unauthorized or unsolicited commercial communications, junk or bulk communications or other “spam” (whether or not using e-mail services, including instant messaging, blog or comment spam) or is otherwise duplicative or unsolicited,
- (B) contains a virus, cancelbots, corrupted files, trojan horse, worm or other harmful, disruptive 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, 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 offence, or otherwise engages in or assists others to engage in any criminal offence, including communicating hatred, pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography,
- (G) engage in threats, harassment, intimidation, stalking or abuse or any conduct that violates the legal rights of others, including the rights of minors and rights relating to privacy and publicity,
- (H) scan or probe 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,
- (I) forge headers or otherwise manipulate any protocols or identifiers used in any system or protocol in such a manner to disguise the origin of any data transmitted using the Services, or
- (J) impersonate or falsely represent 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 Communication 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 services 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 Communication Service specifically allow such messages; 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; or
- (d) No Liability. AppColony does not control or endorse the Content, messages, or information found in the Communication Services or the Services, and therefore, AppColony specifically disclaims any liability with regard to the Communication Services or the Services, and any actions resulting from your participation with the Communication Services or 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.
11. Proprietary Rights.
- (a) Content. “Content” means all materials and content, including designs, editorial, written content, text, graphics, audiovisual materials, multimedia elements, photographs, illustrations, logos, videos, music, sound recordings, flash animation, reports, documents, software, information, formulae, patterns, data and any other work.
- (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 protected by applicable copyrights, trade-marks, patents, trade secrets or other proprietary rights and laws. Nothing in your use of the Services or the Terms of Service grants you any right, title or interest in or to this Third Party Content except for the limited right to use the Services as set out in the Terms of Service.
- (c) Our Content. Except where expressly stated otherwise, all right, title and interest in and to the Services and all Content, source code, processes, designs, technologies, URLs, domain names, marks and logos forming any part of the Services (collectively, “Our Content”) is fully vested in us, our licensors or our suppliers and are protected by applicable copyrights, trade-marks, patents, trade secrets or other proprietary rights and laws. Our Content, where applicable, is copyrighted as a collective work under the Canadian and other copyright laws, and is the property of AppColony and includes works that are licensed to AppColony. All trademarks, service marks, and trade names of AppColony on the Services are trademarks or registered trademarks of AppColony, or of their respective owners. You agree that Our Content is licensed subject to the terms of the Terms of Service, including the disclaimers and limitations of liability herein. Nothing in your use of the Services or the Terms of Service grants you any right, title or interest in or to Our Content except the limited right to use the Services as set out in the Terms of Service. 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 of, broadcast, circulate or in any way exploit any of our Content received through the Services to anyone without our express prior written consent;
- (iii) distribute, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover the source code, of Our Content, to the maximum extent that such prohibition is permitted by applicable law;
- (iv) remove any proprietary notices or labels on or in Our Content; or
- (v) allow any other person or entity to engage in any of the foregoing.
- Any reproduction or redistribution of Our Content is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the full extent of the law.
- (d) Your use of the AppColony software, as an end user is governed by the Terms of Service and all other policies, notices, licensing and legal documents that you, as the end user are consenting to/agreeing to, by utilization of the Services.
- (e) If you do not consent or disagree with any of the terms of the Terms of Service in any of the end user agreements, you must cease all use/utilization of the Service 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, you agree that by posting, uploading, inputting, providing, submitting, entering or otherwise transmitting Your Content to us or any third party using the Services,
- (i) License to Us. You have thereby granted us a royalty-free, non-exclusive, worldwide, fully paid-up limited 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 our customers or to ensure adherence to or enforce the terms of the Terms of Service,
- (ii) Your Warranty to Us. You will have thereby confirmed, represented and warranted 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 and save us harmless from and against any liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and 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 any Third Party Content or other third-party intellectual property rights, or (b) is inappropriate, profane, defamatory, infringing, obscene, indecent 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 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, the “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, you acknowledge and agree that we may retain a copy or copies of same for archival or compliance purposes or to otherwise provide the Services to you or others, subject always to your license to us set out above.
- (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 to remove Your Content at our discretion.
- (o) Limitations on Usage. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination, you are responsible for adhering to such limitations if you download the materials.
- (p) Compliance and Complaints. We do not have any obligation to censor or review any of Your Content, to censor or review any Third-Party Content or to monitor use of the Communication Services or the Services. However, you agree that we may, without notice or liability, disclose to third parties any of your information or Your Content, monitor use of the Services and monitor, review and retain Your Content if we believe in good faith that such activity is reasonably necessary to provide the Services to customers, ensure adherence to or enforce the terms of the Terms of Service, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect us or others. If we receive a complaint relating to use of the Services by you, you acknowledge and agree that we may, in our sole and absolute discretion and without notice or liability, investigate the complaint, restrict, suspend or terminate any service involved, or remove Your Content from our servers.
12. Use of Client Logos and Business Names.
Your use of the Service is your consent to allow AppColony to use your business name and business logos for AppColony promotional purposes. AppColony shall only use this information as it relates to your use of the Service within the scope of this Terms of Service.
13. Disclaimers, Limits of Liability, Indemnites, Release.
- (a) YOUR USE OF THE SERVICES IS SUBJECT TO THESE TERMS OF SERVICE. APPCOLONY, AT ITS SOLE DISCRETION, MAY CHANGE THE TERMS OF SERVICE, CONDITIONS AND OPERATIONS OF THE SERVICES AT ANYTIME WITHOUT NOTICE TO YOU. BY USING THE SERVICES YOU AGREE TO THESE TERMS OF SERVICE, INCLUDING ANY MODIFICATIONS WE MAKE, AND FURTHER WAIVE ANY RIGHTS OR CLAIMS YOU MAY HAVE AGAINST US.
- (b) MANAGERS AND HOSTS ARE NOT AUTHORIZED APPCOLONY SPOKESPERSONS AND THEIR VIEWS DO NOT REFLECT THOSE OF APPCOLONY.
- (c) CERTAIN ASPECTS OF THE SERVICE MAY BE SUBJECT TO ADDITIONAL POSTED CONDITIONS. YOUR USE OF THESE ASPECTS OF THE SERVICE IS SUBJECT TO THOSE CONDITIONS, WHICH ARE INCORPORATED INTO THESE TERMS BY REFERENCE. IN THE EVENT OF AN INCONSISTENCY BETWEEN THESE TERMS AND ANY ADDITIONAL POSTED CONDITIONS, THE PROVISIONS OF THE ADDITIONAL CONDITIONS SHALL CONTROL.
- CUSTOMER ACKNOWLEDGEMENT. YOU ACKNOWLEDGE AND AGREE THAT: (i) ALL USE OF THE SERVICES PROVIDED BY US IS AT YOUR OWN RISK; (ii) THE SERVICES MAY CONTAIN LINKS TO OTHER WEBSITES, 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 OR THE INFORMATION CONTAINED THEREIN, NOR ARE WE RESPONSIBLE FOR ANY CHANGES TO OR CONTENT ON THE WEBSITES; (iii) THE SERVICES PROVIDED UNDER THE TERMS OF SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OR NON-INFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AVAILABILITY OF THE SERVICES. 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 AND LIMITATIONS IN THE TERMS OF SERVICE, SUCH EXCLUSIONS AND LIMITATIONS WILL NOT APPLY TO YOU STRICTLY TO THE EXTENT NECESSARY TO MAKE THE TERMS OF SERVICE CONSISTENT WITH SUCH PROHIBITIONS. WE MAKE NO REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR, FORCE MAJURE, BUG OR VIRUS FREE, AND SHALL NOT BE HELD RESPONSIBLE 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; (iv) YOU MAY BE EXPOSED TO CONTENT THAT YOU FIND OFFENSIVE, INDECENT, OR OBJECTIONABLE OR THAT IS INACCURATE, AND YOU BEAR ALL RISKS ASSOCIATE WITH USING THAT CONTENT. WE HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT THAT MAY, IN OUR SOLE DISCRETION, VIOLATE THESE TERMS OR THAT IS OTHERWISE OBJECTIONABLE.
- (d) 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 OR ANY OTHER PRODUCTS SUPPLIED UNDER THE TERMS OF SERVICE, OR THAT THE FUNCTIONS CONTAINED ON THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE EXPRESSLY DISCLAIM ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE AND NON-INFRINGEMENT, WHETHER ARISING BY USAGE OF TRADE, BY COURSE OF DEALING, BY COURSE OF PERFORMANCE, AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE HOWSOEVER.
- (e) NO LIABILITY
- (i) BY VIEWING AND OR USING THE SERVICES, YOU AGREE THAT APPCOLONY WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, 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.
- (ii) NOTWITHSTANDING ANY OTHER PROVISION OF THE TERMS OF SERVICE, IN NO EVENT SHALL WE, OUR AFFILIATES, OR OUR CONTROLLING PARTIES, AGENTS, EMPLOYEES, SUPPLIERS, RESELLERS AND DISTRIBUTORS (COLLECTIVELY, IN THESE CAPITALIZED SECTIONS, “WE” OR “US”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OR LOSSES WHATSOEVER, INCLUDING DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUES, ROYALTIES,GOODWILL OPPORTUNITY, EARNINGS, LOSS OF TIME, USE OR DATA, ARISING DIRECTLY OR INDIRECTLY FROM OR RELATED TO THE TERMS OF SERVICE OR THE USE, OR NON-USE OF THE SERVICES OR ANY SOFTWARE, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF ONE OR MORE OF US HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, INCLUDING DAMAGES OR LOSSES ARISING FROM OR IN ANY WAY RELATED TO THE FOLLOWING: (i) ANY LOSS OR DAMAGE TO DATA ARISING DIRECTLY OR INDIRECTLY OUT OF USE OR NON-USE OF THE SERVICES OR RELATED COMPONENT; (ii) BRECHES OF THE TERMS OF SERVICE; (iii) CONTENT POSTED ON THE SERVICES; (iv) THE USE OF THE SERVICES BY YOU OR ANY PERSON USING YOUR ACCOUNT, USERNAME AND PASSWORD; (iv) ANY VIOLATION OF ANY RIGHTS OF A THIRD PARTY; AND (v) ERRORS, INTERRUPTIONS, MISTAKES, OMISSIONS, NON-DELIVERY, INCORRECT DELIVERY, OR DEFECTS ON OR RELATED TO THE SERVICES. YOU HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE YOU OF ANY ADEQUATE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OUR LIABILITY EXCEED ONE HUNDRED CANADIAN DOLLARS ($100).
- (f) USE OF THE SERVICES. USE OF THE SERVICES IS SUBJECT TO EXISTING LAWS AND LEGAL PROCESS. NOTHING CONTAINED IN THESE TERMS SHALL LIMIT OUR RIGHT TO COMPLY WITH GOVERNMENTAL, COURT, AND LAW ENFORCEMENT REQUESTS OR REQUIREMENTS RELATING TO YOUR USE OF OUR SERVICES.
- (g) LIMITATION PERIOD. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR FROM THE DATE AT WHICH THE FACTS AROSE GIVING RISE TO SUCH CLAIM OR CAUSE OF ACTION WERE KNOWN OR OUGHT TO HAVE KNOWN OR BE FOREVER BANNED.
All obligations and rights that by their nature are intended to survive termination or expiration of the Terms of Service will survive the actual or purported termination or expiration of the Terms of Service.
AppColony may deliver notice to you by means of e-mail, a general notice on this Website, or by other reliable method.
You hereby agree to indemnify and hold harmless AppColony, its affiliated and associated companies, and their respective directors, offices, 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, resulting from or arising out of (i) a breach of these Terms of Service, (ii) 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 of any rights of a third party.
You hereby expressly and irrevocably release and forever discharge AppColony, its affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, successors and assigns of and 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 the Terms of Service 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 the Terms of Service. Our rights, powers and remedies in the Terms of Service, 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.
AppColony reserves the right, in its 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 Service, your right to use the Services immediately ceases. AppColony shall have no obligation to maintain any 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 AppColony 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. This 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 Service, 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 AppColony does not accept any liability for such loss. AppColony reserves the right to contact you about special pricing or other promotional offers.
22. Governing Law.
By using the Services you agree that in all matters relating the Services, you shall be governed by the laws of the Province of Alberta, Canada, without regard to principles of conflict of laws. You may not use the Services if the law prohibits you from doing so in the country in which you reside.
23. Assignment and Inurement.
We may at any time assign our rights and obligations under the Terms of Service, in whole or in part, without notice to you. You may not assign the Terms of Service without our prior, written consent. The Terms of Service 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 franchiser, franchisee relations is intended or created by these Terms or your use of the Services.
25. Force Majeure.
Neither party shall be responsible for a failure to fulfil its obligations under the Terms of Service 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 the Terms of Service 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.
28. English Language.
The Terms of Service and all documents relating thereto be drawn up in English and the English language version of the Terms of Service is deemed conclusive and shall govern the relationship between us and you.