1. Acceptance Of Terms
The following agreement outlines User’s obligations when using the Services (as such term is defined elsewhere herein) offered from time to time by Happy Studio, Inc. (“Makr”) or its Affiliates. The Services are owned, maintained, offered and operated by Makr.
The Services are accessed or used by User under the terms and conditions of use described below (the “Terms of Service”). PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, USER AGREES TO BECOME BOUND BY THE TERMS OF SERVICE. IF USER DOES NOT AGREE TO ALL THE TERMS OF SERVICE, THEN USER SHOULD NOT ACCESS THE SERVICES. Makr’S ACCEPTANCE OF USER’S USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON USER’S ASSENT TO ALL OF THE TERMS OF SERVICE, TO THE EXCLUSION OF ANY OTHER TERMS. IF THESE TERMS OF SERVICE ARE CONSIDERED AN OFFER BY Makr, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
User affirms that (i) User is either 18 years of age or older, an emancipated minor, or possesses legal parental or guardian consent to enter into these Terms of Service, (ii) User is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and (iii) User understands and will comply with all of these Terms of Service.
Makr is not intended for children under 13. If User is under 13 years of age, then User should not use the Services.
2. CERTAIN DEFINITIONS; INTERPRETATION
Any terms capitalized but not defined herein shall have the meanings ascribed to them elsewhere in the Platform Agreements. Headings shall not affect the interpretation of these Terms of Service. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to “writing” or “written” includes electronic mail.
- “Anonymized Data” shall mean any elements, components, composites or aggregations of any and all data (including data that constitutes User Content) collected by Makr through and in connection with the Services provided that: (a) such Anonymized Data has been “anonymized” in accordance with accepted data industry practices; (b); such Anonymized Data does not contain any purchase information, personal health information, or personal financial information, that is directly and openly associated with an individual’s name, postal address, physical address, email, or telephone number; and (c) such Anonymized Data does not otherwise violate any person’s legal right to privacy.
- “Business Day” shall mean any day which is not a Saturday, Sunday or public holiday in the State of New York.
- “Designed Products” means products featuring, or making use of, User-Generated Designs that are made available for sale through the Marketplace.
- “Direct Sales” shall mean sales of physical products in the open market directly to end users and consumers of such products. Direct Sales shall not include transactions with a retailer, a distributor, a franchise, a wholesaler or other party that is not an end user or consumer.
- “Effective Date” shall mean the date of as of which the User enters into the User Agreement.
- “Gross Proceeds” shall mean, in respect of a Marketplace campaign, the total cash amounts received by Makr from buyers of Designed Products in the context of such campaign, less any Taxes imposed on Makr.
- “Makr App” shall mean the Makr design application available for mobile, web or other use from time to time.
- “Makr Content” shall mean any and all content (including but not limited to the text, code, fonts, graphics, designs and photos created by and for Makr, interactive features and the trademarks, service marks and logos contained therein) provided through, or used as part of, the Services by Makr or a third party who licensed the right to use such content to Makr.
- “Marketplace” shall mean the marketplace offered by Makr allowing Users to offer, sell and buy Designed Products featuring User-Generated Designs.
- “Marketplace Transactions” shall mean any transaction(s) permitted by Makr to be conducted through the Marketplace.
- “Native Commercial Purposes” shall mean using User-Generated Designs in the context of User’s branding, logos, packaging or other presentational elements of User’s products or services. By way of example, User may use User-Generated Designs: (i) on business cards to distribute to prospective clients; (ii) on branded postcards, provided that such postcards are not directly or indirectly sold to third parties; and (iii) on clothing of User’s employees and consultants to advertise their affiliation. Native Commercial Purposes shall not include the sale, rental or sub-licensing of the User-Generated Designs themselves to any third party in any way.
- “Normal Business Hours” shall mean 9:30 am EST to 6:30 pm EST of each Business Day.
- “Party” shall mean either Makr or User, respectively, and “Parties” shall mean Makr and User, collectively.
- “Services” shall mean, collectively, (i) the Site; (ii) the Makr App; (iii) the Software; (iv) the Marketplace; and (v) any and all services ancillary to (i) through (iv).
- “Site” shall mean the website available at www.makrplace.com or such other website address as may be notified to User from time to time.
- “Software” shall mean a platform, and all data and processes contained therein, maintained and operated by Makr and/or its Affiliate(s) designed to allow User to design, purchase, and/or sell designs or products.
- “Taxes” shall mean any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
- “Third Party Platforms” shall mean third party social networks or email services, including but not limited to Facebook or Facebook Connect.
- “User” shall mean the person (whether a natural person or company) on behalf of which the Platform Agreements are entered into and, to the extent so required by the terms and conditions of the Platform Agreements, Affiliates of such person.
- “User Agreement” shall mean the Makr User Agreement between Makr and User with respect to the Services, as in effect, and as amended, from time to time.
- “User Content” shall mean any and all information or materials submitted by Users through uploads or other forms of submission into or through the Services other than content uploaded or submitted by a User that originally qualified as Makr Content.
- “User-Generated Designs” shall mean any and all designs, logos or other materials created by Users using, or based on, in whole or in part, the Services and/or Makr Content.
- “User Proceeds” shall mean the net amount of cash payable by Makr to User upon the conclusion of a Makr Marketplace campaign.
- “Virus” shall mean any thing or device (including any software, code, file or program) that may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
3. TERMS OF SERVICE
These Terms of Service can be found at the following web address, or such other web address as may be notified to User from time to time:
Makr reserves the right, at its sole discretion, to modify these Terms of Service at any time. If the modifications constitute a material change to the Terms of Service, Makr will notify User by posting an announcement on the Site. What constitutes a “material change” will be determined at Makr’s sole discretion, in good faith and using common sense and reasonable judgment.
User is responsible for reviewing and familiarizing itself with any such modifications. Use of any part of the Services by User following such notification constitutes User’s acceptance of the Terms of Service as modified.
Modifications shall go into effect on the later of: (a) the date on which such changed Terms of Service are made available to User during Normal Business Hours on Makr’s website; and (b) the third calendar day following the day on which Makr has informed User of such changes by written notice (including by electronic mail) during Normal Business Hours.
4. USER’S RIGHT TO ACCESS AND USE SERVICES; RESTRICTIONS
Subject to the terms of the Platform Agreements, Makr grants to User a non-exclusive, non-transferable right to access and use the Services. User may select such Services as the Services shall make available for selection or de-selection from time to time.
User acknowledges and agrees that User shall use the Services solely for User’s own benefit and that it shall not allow others to use the platform under or through User’s account. User shall prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Makr.
User shall: (a) in order to access and/or use the Services, provide Makr with: (i) all necessary co-operation in respect of the Platform Agreements; and (ii) all necessary access to such information as may be required by Makr; (b) comply with all applicable laws and regulations with respect to its activities under the Platform Agreements; (c) carry out all other User responsibilities set out in the Platform Agreements in a timely and efficient manner (and in the event of any delays in the User’s provision of such assistance as agreed by the parties, Makr may adjust any agreed timetable or delivery schedule as reasonably necessary); (d) ensure that User access and uses the Services in accordance with the Platform Agreements and shall be responsible for any Authorized User’s breach of the Platform Agreements; (e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Makr, its contractors and agents to perform their obligations under the Platform Agreements, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by Makr from time to time; and (g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Makr’s data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet.
Makr reserves the right, without liability to User, to disable User’s access to the Services for any reason or no reason at all.
User is solely responsible for the activity that occurs on User’s account, and User must keep User’s account password secure. User may change User’s password at any time by updating User’s account page. In addition, User agrees to immediately notify Makr of any unauthorized use of User’s password or account or any other breach of security.
In order to access some features of the Services, User will have to create an account. User is not allowed to use another User’s account without their prior written permission. When creating an account, User must provide accurate and complete information. If any of User’s information changes, User agrees to update User’s registration information as soon as possible. If Makr suspects that User’s registration information is not complete, current, or accurate, or that User has otherwise violated these Terms of Service, then User’s account may be subject to suspension or termination, and User may be barred from using Makr.
Makr grants the operators of public search engines permission to use spiders to copy materials from Makr for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Makr reserves the right to revoke these exceptions either generally or in specific cases, in Makr’s sole discretion.
User shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties: (i) and except to the extent expressly permitted under the Platform Agreements, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Services in order to build a product or service which competes with the Services; or (c)use the Services to provide services to third parties; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Services.
5. RULES OF CONDUCT
The following Rules of Conduct apply to User’s use of the Services and with respect to any User Content.
User agrees not to collect or use any Personal Information from Makr, nor use the communication systems provided by the Services for any commercial solicitation purposes, including without limitation to solicit, for commercial purposes, any other Users. In addition, when using our Services, User may not:
- Upload, post, email or otherwise transmit any User Content that is libelous or defamatory, pornographic, sexually explicit, unlawful or plagiarized;
- Infringe or violate any patent, copyright, trademark, trade secret or other property right;
- Breach a duty of confidentiality by which User is bound due to a contractual or fiduciary relationship (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Do anything that a reasonable person would consider harassing, abusive, threatening, harmful, vulgar, profane, obscene, excessively violent, racially, ethnically or otherwise objectionable or offensive in any way;
- Breach of any person’s privacy or publicity rights, a misrepresentation of facts, or hate speech;
- Violate or encourage others to violate any applicable law, statute, ordinance or regulation;
- Send spam, chain letters or any unsolicited e-mail;
- Upload or promote software or services that deliver spam, chain letters or any unsolicited e-mail;
- Upload anything that contains a Virus;
- Create a database by systematically downloading and storing content that resides within the Services;
- Upload, post, email or otherwise transmit any User Content that provides any telephone numbers, street addresses, last names, URLs or email address;
- Engage in commercial activities within the Services but outside the Marketplace;
- Use Makr Content to promote any product or service of anyone who competes with the Services;
- Harm minors in any way;
- Solicit personal information from anyone under 18 years of age;
- Provide false or deceptive information (including but not limited to impersonating any person or entity);
- Delete, add or otherwise change User Content or other content when User has not been granted the privileges to do so; or
- Allow usage by others in such a way as to violate these Terms of Service.
6. SERVICE AVAILABILITY
Makr shall provide the Services to User on and subject to the terms of the Platform Agreements. Makr shall make commercially reasonable efforts to make the Services available 24 hours a day, seven days a week; provided, however, that Makr may carry out scheduled and unscheduled maintenance work as necessary from time to time and such maintenance work may impact the availability of the Services. In respect of any scheduled or unscheduled maintenance, Makr will make commercially reasonable efforts to perform such work outside Normal Business Hours and, where appropriate, give User notice of such maintenance work in advance.
Under no circumstances whatsoever shall Makr be liable to Users in connection with, or on account of, the unavailability of the Services from time to time.
7. USER SUPPORT SERVICES
Makr will, as part of the Services and at no additional cost to User, provide User with Makr’s standard customer support services during Normal Business Hours in accordance with Makr’s support services policy in effect at the time that the Services are provided. Makr may amend the support services policy in its sole and absolute discretion from time to time.
Each of Makr and User may be given access to Confidential Information from the respective other party in connection with the Services. Each of User and Makr shall hold the respective other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Services and the Platform Agreements.
Each of Makr and User shall take all reasonable steps to ensure that the respective other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Platform Agreements. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. Makr acknowledges that User’s Data is User’s Confidential Information. This provision shall survive termination of the Services and the Platform Agreements, however arising.
9. OWNERSHIP; INTELLECTUAL PROPERTY AND USAGE RIGHTS
Makr shall retain all worldwide right, title and interest in the intellectual property of the Services and Makr Content to the maximum extent permitted by law, including, but not limited to, the trademarks, “look and feel,” color combinations, layout, and all other graphical elements of the Services, and the copyright in and to the original content of the Services. User should assume that everything User reads or sees as part of the Services is copyrighted or otherwise protected and owned by Makr, or a third party who licensed the right to use such content to Makr. Unless otherwise expressly noted, nothing that User reads or sees as part of the Services, or any of the source code or HTML code that Makr uses to generate any part of the Services may be copied, reproduced, modified, distributed, transmitted, republished, displayed, or performed for commercial or other use without the prior written consent of Makr, except as expressly provided in the Platform Agreements or otherwise permitted by relevant law.
User agrees to notify Makr of all problems and ideas for enhancements which come to User’s attention during the Period, and User hereby forever assigns to Makr all right, title and interest to such enhancements and all property rights therein including, without limitation, all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
User acknowledges and agrees that the Services and Makr Content are the sole property of Makr and includes valuable trade secrets of Makr. User agrees to treat such Services and Makr Content as strictly confidential and that User will not, without the express written authorization of Makr: (i) demonstrate, copy, sublicense, sell or market the Services or Makr Content to any third party; (ii) publish or otherwise disclose information relating to performance or quality of the Services or Makr Content to any third party; (iii) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Services or Makr Content or any portion thereof; or (iv) copy, use or transfer any direct mail marketing materials developed by Makr.
Makr does not claim copyright or other intellectual property interests in User-Generated Designs. Makr acknowledges and agrees that copyright interests in such User-Generated Designs may be held by User in accordance with applicable copyright laws. However, Makr shall retain any and all intellectual property title, ownership and interest in any and all portions, components or elements that form part of User-Generated Designs insofar as they constitute Makr Content.
Given the availability of Services and Makr Content to other users, User acknowledges and agrees that designs may be created by other users that are substantially similar or even identical to User’s User-Generated Designs and that such users may equally benefit from copyright interests under applicable copyright laws. Makr cannot and will not accept any liability whatsoever for financial or other damage suffered by User as a consequence of these circumstances.
As consideration for the provision by Makr of the Services to User, User hereby undertakes, covenants and agrees that User shall not engage in any commercial transactions with respect to User-Generated Designs other than (i) for User’s Native Commercial Purposes; (ii) Direct Sales; and (iii) Marketplace Transactions.
Specifically, this means that, if User wishes to sell physical products that contain User-Generated Designs, User must do so to end users and consumers of such products only. If User wishes to sell products to a retailer, distributor, a franchise, a wholesaler or other party that is not an end user or consumer, User must get in touch with Makr to obtain Makr’s agreement in writing. User is not authorized to engage in such transactions without Makr’s written approval.
If User wish to make any commercial use of Makr Content that is not permitted herein, or if User wishes to seek clarification as to whether User’s intended use is permissible, User should contact email@example.com.
INTELLECTUAL PROPERTY INFRINGEMENT
Makr respects the intellectual property of others, and asks Users to do the same. In User’s use of and interactions with the Services, including if User accesses Services via a Third Party Platform, User may not post any User Content that contains copyrighted material belonging to others, or any material that infringes another intellectual property right of others, without obtaining their prior written consent.
Makr reserves the right, in its discretion, to remove any User Content or reject any User-Generated Design if Makr believes it may infringe any right of a third party, and/or to terminate the account of any User that we reasonably believe may be infringing Makr’s or any third party’s rights.
If a User believes that any other content (including but not limited to other User Content, User-Generated Designs or Makr Content) on our Services infringes such User’s copyright or other intellectual property right, then such User may send to Makr a written communication that includes the following (please consult legal counsel or see Section 512(c)(3) of the US Copyright Act to confirm these requirements with respect to copyright claims):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of any copyrighted work claimed to have been infringed.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material (including URLs to access the material).
4. Information reasonably sufficient to permit us to contact User about User’s complaint, such as an address, telephone number, and, if available, an email address.
5. A statement that of good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or applicable law.
6. A statement, sworn under penalty of perjury, that the information in notification is accurate and that you are authorized to act on behalf on the owner of an exclusive right that is allegedly infringed.
Such written notice should be sent to our designated agent as follows:
Intellectual Property Complaints Makr
33 Nassau Avenue, 2nd Floor, Suite 26
Brooklyn, NY 11222
Users should note that, under Section 512(f) of the US Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
10. MAKR MARKETPLACE
Makr provides Users the opportunity to buy Designed Products via the Marketplace. A User wishing to monetize User-Generated Designs may ask Makr to sell, and other Users may buy, Designed Products by publishing a campaign, which runs for 30 days (but can be terminated by Makr at any time at Makr’s sole and absolute discretion).
Makr will recognize that a Designed Product was successfully “sold” via the Marketplace if Makr has determined that such Designed Product has been ordered, shipped and payment in full for such Designed Product was received by Makr. Upon conclusion of a campaign, Makr will calculate the number of products sold, calculate the User Proceeds and effect the payment to User of such User Proceeds. Users who are US Persons for purposes of U.S. federal tax laws, and who earn $600 or more User Proceeds from Makr campaign(s) over the course of a calendar year, must be issued a Form 1099. Such Users must provide to Makr all necessary information to complete any required filing and forms before Makr can effect payment of User Proceeds to the relevant User.
In respect of each campaign that User creates through the Marketplace:
- User covenants and agrees that it shall not fail to pay for items purchased by such User;
- User represents and warrants to Makr that the description and title of such campaign by it do not, either in and of themselves or in addition to the text and images featured in the created merchandise, infringe upon the rights of any third party;
- User acknowledges and agrees that Makr may, in its sole discretion, release User’s contact information to a third party that alleges – pursuant to Makr’s complaint policy described elsewhere in these Terms of Service – unauthorized use by User or in User’s campaign of its intellectual property;
- User acknowledges and agrees that, upon receipt by Makr of an allegation of intellectual property rights infringement by a third party consistent with Makr’s Complaint Policy, then in Makr’s sole discretion, User’s campaign may be subject to immediate cancellation, possible forfeiture of any cash receipts or profits, and suspension or termination of User’s account with Makr;
- User agrees not to provide untrue information in such campaign including, but not limited to: (i) the amount of product for sale; (i) the origin of the production of the product; or (iii) the intended recipient of profits associated with such campaign;
- User agrees not to solicit potential buyers through information posted in such campaign other than information directly relating to the primary item(s) made available for purchase. Specifically, User shall not utilize substantially unrelated benefits or incentives, such raffles, chances to win, and other representations of additional opportunities beyond the sale of the primary item being sold.
- User agrees not to create any campaign relating to the death of, or physical or other injury to, one or more individuals or animals.
- User agrees that any campaign User creates that either implicitly or explicitly relates to a charity or third party fundraising effort is authorized by such charity or third party fundraising effort and clearly and accurately states the percentage of User Proceeds that will be donated and to whom it will be donated.
- User agrees that Makr, in its sole and absolute discretion, may donate up to 100% of the User Proceeds to a third party charity of its choice in the event Makr is in receipt of a complaint from a charity, fundraiser or an aggrieved family and/or the campaign is deceptive, misleading or likely to cause confusion or mistake that it deems, in its reasonable determination, to have prima facie credibility; provided that User further agrees that any such determination by Makr shall be final and conclusive, and that Makr under no circumstances shall be liable to any person, including User, for having made such determination and/or for having made such donation to a third party charity.
11. PURCHASES AND PRODUCT DESCRIPTIONS
If a User wishes to purchase any product (including Designed Products sold through the Marketplace) made available through the Services, such User may be asked to supply certain information relevant to such purchase, including User’s credit card or debit card number, the expiration date of User’s credit card or debit card, User’s billing address, and User’s shipping information.
USER REPRESENTS AND WARRANTS THAT USER HAS THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION.
Makr does not guarantee that product descriptions or other content on the Services will be accurate, complete, reliable, current, or error-free. Descriptions and images of, and references to, products on the Services do not imply Makr’s or any of our affiliates’ endorsement of such products. Makr reserves the right, with or without prior notice: (i) to change such descriptions, images, and references; (ii) to limit the available quantity of any product; (iii) to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; (iv) to bar any User from conducting any or all transaction(s); and/or (v) to refuse to provide any User with any product. Price and availability of any product offered through Makr are subject to change without notice. User agrees to pay all charges that may be incurred by User or on User’s behalf through the Services, at the price(s) in effect when such charges are incurred, including all shipping and handling charges. In addition, User is responsible for any Taxes that may be applicable to User’s purchases through the Services.
12. RETURN POLICY
While Makr doesn’t offer returns, Makr’s biggest priority is to ensure that Users are happy with their Makr experience. If for any reason a User is unhappy with User’s purchase, such User should email firstname.lastname@example.org with User’s order number and issue.
Proofing orders is User’s responsibility. Makr provides best-in-class digital tools for User to design, customize and review a purchasing order before submission.
Because of the personalized nature of Makr’s products, Makr is unable to accept returns. Makr therefore encourages Users to take great care to ensure the accuracy of each purchasing order before ordering products or purchasing a PNG or PDF. Makr provides a complimentary watermarked PDF to print at home and review as a physical proof for all paper products. Makr asks that Users carefully review this before submitting a print order or making a purchase.
13. PROMO CODES & CREDITS
From time to time Makr may offer promo codes or credits to Users. Promo codes may be applied during checkout. Credits may be redeemed for User-Generated Designs PDFs or discounts on professional paper print orders. Neither is combinable with any other offer, promo code or credit. Makr may provide User with credits when Users share their User-Generated Designs or invite new users to join the Services. Promo codes or credits may be awarded to the sharer or referrer when the User’s referrals join, as well as when User’s referrals submit their first print orders.
Makr free shipping promotions are valid on paper print standard shipping only and may not be used for international shipping nor for shipment of “non-standard” items. Additional terms and limitations may apply at the time of offer.
14. USER CONTENT – OTHER PROVISIONS AND CONSIDERATIONS
USER OWNERSHIP AND CONTROL
If Makr processes any personal data on User’s behalf when performing the Services (or any part thereof), User acknowledges and agrees that: (a) User shall ensure that User is entitled to transfer the relevant personal data to Makr so that Makr may lawfully use, process and transfer the personal data in accordance with the Platform Agreements on User’s behalf; (b) User shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (c) Makr shall process the personal data only in accordance with the terms of the Platform Agreements and any lawful instructions reasonably given by User from time to time; and (d) each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of personal data or its accidental loss, destruction or damage.
User shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of User Content; provided, however, that User acknowledges and agrees that Makr may process, use, sell, transfer or otherwise monetize Anonymized Data as provided elsewhere in these Terms of Service.
In the event of any loss or damage to Services or User Content, User’s sole and exclusive remedy shall be for Makr to use commercially reasonable efforts to restore lost or damaged User Content from the latest back-up of such User Content maintained by Makr in accordance with its archiving procedure from time to time. Makr shall not be responsible for any loss, destruction, alteration or disclosure of User Content caused by any third party.
THIRD PARTY DATA PROVIDERS, PARTNERS
User acknowledges and agrees that Makr may disclose data it collects through or in connection with the Services to its third party agents and partners who: (i) have a “need to know” for purposes of any performance of Services hereunder; (ii) have been informed in writing of the highly confidential nature of the data and the limitations, procedures and obligations that apply to the access, use and disclosure of such data; and (iii) are themselves bound by written restricted use and nondisclosure agreements or obligations.
THIRD PARTY PLATFORMS
It may be possible to access the Services via Third Party Platforms. Access to Services via a Third Party Platform may only be granted, once User explicitly allows it, through an interface provided by the Third Party Platform. Third party communications then may be allowed via the Third Party Platform.
If User accesses the Services via a Third Party Platform, then certain activity or actions User takes through or on the Services may be viewable as a “story”, “feed”, or in a “stream”, “message”, “timeline”, or “user action story” on that Third Party Platform, and thus may be searchable or viewable in other online locations also. User may be able to control or change the “stories” that can be published on the Third Party Platform by modifying User’s settings on that site. Makr has no control over and shall not be liable for Third Party Communications or for use of any Third Party Platform, including without limitation the “stories” or “feeds” published by Third Party Platforms.
If User accesses Services via a Third Party Platform, then all data collected, accessed or stored from that third party, or content shared back to or used by that third party, will be collected, shared or used in compliance with the terms and policies of that Third Party Platform.
As Makr does not have control over the user interface provided by Third Party Platforms, Makr shall not be responsible for any changes or problems with the interface or exchange of information provided by any of them. Makr has no control over the privacy policies of Third Party Platforms or responsibility for the information or content collected by such websites and platforms. If User accesses Services through a Third Party Platform then Makr encourages User to become familiar with the privacy policies and practices of that site or platform.
By submitting User Content to the Services via a Third Party Platform, User hereby grants Makr a worldwide, non-exclusive, royalty-free, sub-licensable, and transferable right and license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Content, including but not limited to User’s Third Party Platform profile information, photos, profile picture, and certain other information, in connection with the Services and Makr’s (and any of its successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works Makr may create) in any media now known or hereafter developed.
User hereby represents, warrants and guarantees that User owns the intellectual property rights, or has prior written consent to submit or post material protected by an intellectual property right of any third person, including but not limited to copyright, attached to any User Content, including a Third Party Platform profile photo, submitted to the Services via a Third Party Platform.
USE OF ANONYMIZED DATA
User acknowledges and agrees that Makr may process, filter, disclose, transfer, sell to third parties, or otherwise monetize, with or without the involvement of third parties, any and all Anonymized Data.
15. CANCELATIONS; TERMINATION
Each of User and Makr may cancel or terminate the Services and the Platform Agreements, for any reason or no reason at with or without notice.
Each of Makr and User may terminate the Services and the Platform Agreements with immediate effect, upon written notice (including by email) to the respective other Party, if such other Party breaches any material provision of the Platform Agreements and does not cure such breach within 30 days after receiving written notice thereof.
Upon cancelation or termination of any or all Services: (a) each of User and Makr will be responsible for undisputed amounts that are payable to the other party in connection with Services through the effective date of termination; (b) all access, Service use, support, and maintenance rights granted to User hereunder will immediately cease to exist except as otherwise set forth in the Platform Agreements; and (c) User must promptly discontinue all use of the Services.
Any accrued payment obligations hereunder, as well any sections or provisions of the Platform Agreements which by their nature would be intended to be applicable following expiration or termination of the Platform Agreements, will survive that expiration or any termination for any reason.
16. WARRANTY DISCLAIMERS
Makr makes no guarantee or warranty, express or implied, as to the reliability, accuracy, timeliness or completeness of any information found as part of the Services and assumes no responsibility for any errors or omissions therein. USER ACCESSES THE SERVICES AT USER’S OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED TO THE FULL EXTENT PERMISSIBLE BY LAW. NEITHER Makr NOR ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OR UNAVAILABILITY OF INFORMATION OR CONTENT AS PART OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF Makr, COMPUTER VIRUS OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. Makr IS NOT LIABLE FOR CRIMINAL, TORTUOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF THIRD PARTIES THAT AFFECT THE SERVICES. IN NO EVENT WILL Makr OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES, ASSIGNS OR THIRD PARTY CONTENT PROVIDERS BE HELD LIABLE FOR ANY TORTUOUS OR ILLEGAL CONDUCT OF OTHER USERS. IN NO EVENT WILL Makr OR ANY OF ITS AFFILIATES, AGENTS, EMPLOYEES OR ASSIGNS BE HELD LIABLE FOR ANY DAMAGE TO EQUIPMENT, HARDWARE OR OTHER PROPERTY OR PERSONAL INJURY THAT ARISES IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, OR ANY CONTENT INCLUDED IN OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES.
User agrees to indemnify and hold Makr and its Affiliates, officers, directors, agents, and employees, harmless from and against any suit, action, claim, demand, penalty or loss, including attorneys’ fees, due to or arising out of User’s use of the Services, or a breach of any of term of Platform Agreements, or User’s violation of any law, regulation, order or other legal mandate, or the rights of a third party. Makr reserves the right to assume the exclusive defense and control of any matter subject to indemnification by User hereunder. The indemnification obligation and Makr’s right to exclusive defense provided for herein shall survive the cancelation and/or termination of any or all the Services and/or the Platform Agreements.
18. HYPERLINK POLICY
19. ELECTRONIC COMMUNICATIONS
Makr uses reasonable security measures and take reasonable system, process and administrative precautions to protect the security and integrity of email and other electronic communications that User may send to us. Despite all these precautions, no method of transmission over the Internet is entirely secure and Makr cannot guarantee the confidentiality or security of User’s electronic communications or its contents. User transmits such information at User’s own risk and User should decide very carefully which information User wants to send to Makr via any electronic communication.
20. PARENTAL CONTROLS
Pursuant to 47 U.S.C. Section 230(d), Makr hereby notifies User that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist User in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the following Web sites: GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Makr does not endorse any of the products or services listed at such sites.
21. INFORMATION OR COMPLAINTS
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice:
If User has a question or complaint regarding Makr, please send an e-mail to email@example.com. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
22. ENTIRE AGREEMENTS; AMENDMENTS
The Platform Agreements constitute the only agreements between the Parties with respect to the Services and all other prior negotiations, representations, agreements, and understandings are superseded hereby.
If any provision of the Platform Agreements shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of the Platform Agreements.
All notices and other communications given or made pursuant to the Platform Agreements shall be in writing and shall be deemed to have been given: (a) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (b) if sent by facsimile or e-mail of a pdf document, on the date of receipt of a confirmation of transmission; or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth below (or to such other address that may be designated by a Party from time to time in accordance with this provision).
If to Makr:
c/o Happy Inc.
33 Nassau Ave. 2nd Floor, Suite 26
Brooklyn, NY 11222
If to User:
The physical location address of the User as identified during the onboarding process in connection with the execution of the User Agreement.
25. CERTAIN REMEDIES; NO WAIVER
In addition to any legal or equitable remedies that might otherwise be available, the Platform Agreements may be enforced with remedies of specific performance and injunction, both of which are expressly deemed reasonable.
If User breaches any term of the Platform Agreements, Makr may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. Makr’s remedies are cumulative and not exclusive. Failure of Makr to exercise any remedy or enforce any portion of the terms of the Platform Agreements at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. Users of the Services are responsible for compliance with all applicable regulations and laws.
26. JURISDICTION; APPLICABLE LAWS; DISPUTES
User will resolve any claim, cause of action or dispute (together a “claim”) User has with Makr arising out of or relating to the Services or the Platform Agreements exclusively in a state or federal court located in Kings County, New York. The laws of the State of New York will govern the Platform Agreements, as well as any claim that may arise between User and Makr, without regard to conflict of law principles. User agrees to submit to the exclusive personal jurisdiction of the courts of the State of New York, located in Kings County, for the purpose of litigating all such claims. In any dispute arising under the Platform Agreements, the prevailing party will be entitled to reasonable attorneys’ fees and expenses. Any dispute arising hereunder or related to User’s use of the Services shall be solely between User and Makr, and to the fullest extent permitted by law, no dispute or proceeding shall be joined with any other or decided on a class-action basis.