Terms of Service

Last Updated December 5, 2017

 

1. GENERAL

The following terms of service (“Terms of Service”) outline 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.  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

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.

Definitions:

  • “Business Day” shall mean any day which is not a Saturday, Sunday or public holiday in the State of New York.
  • “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.
  • “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.
  • “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; and (iv) any and all services ancillary to (i) through (iii).
  • “Site” shall mean the website available at www.makr.co 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) using the Services.
  • “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.
  • “Virus” shall mean anything 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:

https://www.makr.co/apps/builder/termservices

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

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 cooperation; and (ii) all necessary access to such information as may be required by Makr; (b) comply with all applicable laws and regulations; (c) carry out all other User responsibilities 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 accesses and uses the Services in accordance with these Terms of Service; (e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for Makr, its contractors and agents to perform their obligations hereunder; (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 hereunder, 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
  • 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 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.

 

8. OWNERSHIP; INTELLECTUAL PROPERTY AND USAGE RIGHTS

MAKR CONTENT

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 for herein 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.

USER CONTENT

User, and/or its licensors and licensees, shall own all rights, title and interest in and to all of User Content. User hereby grants a worldwide, non-exclusive, revocable license to Makr for Makr and its Affiliates and licensees to access, use, process, display and perform User Content through any media, in any media now in existence or later developed, including on any distribution platform, including wireless, television, online or offline. (See elsewhere in these Terms of Service: User Content – Other Provisions And Considerations.)

USER-GENERATED DESIGNS

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 and (ii) Direct Sales.

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 wishes 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 support@makr.co.

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

195 Montague Street, 14th Floor

Brooklyn, NY 11201

Email: support@makr.co

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. PURCHASES AND PRODUCT DESCRIPTIONS

If a User wishes to purchase any product 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.

By submitting such information, User grants Makr the right to provide such information to third parties for purposes of facilitating the completion of purchases initiated by User or on User’s behalf. Verification of information may be required prior to the acknowledgment or completion of any purchases.

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.

 

11. 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 orders@makr.co 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.

 

12. 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.

Promo codes and credits are granted at Makr’s sole discretion. They are promotional or loyalty discounts or credits offered by Makr, and do not constitute an account, a payment instrument or other property owned by any Makr user. Promo codes do not have a cash value, and User may only use promo codes in connection with a qualifying purchase through the Services. Makr reserves the right to revoke any promo codes or credits if Makr determines that User has engaged in fraudulent activity (e.g. inviting fake people to join Makr) or otherwise violated these Terms of Use, or if Makr terminates User’s membership.  Promo codes and credits are not transferable or sellable and are not gift cards. Makr reserves the right at any time without notice to User to change the terms applicable to the promo codes and credits, including expiration period and/or User’s ability to redeem existing promo codes and credits. Makr does not impose any fee on User’s use of promo codes and credits.

 

13.  USER CONTENT

User acknowledges and agrees that: (a) User shall ensure that User is entitled to transfer any User Content to Makr so that Makr may lawfully use, process and transfer such User Content on User’s behalf; and (b) User shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer.  User shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of User Content.  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 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.

 

14. CANCELATIONS; TERMINATION

Each of User and Makr may cancel or terminate the Services for any reason or no reason at with or without notice.  Each of Makr and User may terminate the Services with immediate effect, upon written notice (including by email) to the respective other Party, if such other Party breaches any material provision herein 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; and (c) User must promptly discontinue all use of the Services.  Any accrued payment obligations hereunder, as well any sections or provisions herein which by their nature would be intended to be applicable, will survive that expiration or any termination for any reason.

 

15. 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.

 

16. INDEMNITY

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, any breach of these Terms of Service, 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.

 

17. HYPERLINK POLICY

The Services may contain links to third party websites. Any such link is provided only as a convenience. The inclusion of any link does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Makr of any information contained in any third party website. In no event shall Makr be responsible for the information contained on that website or User’s use of or inability to use such website. User should also be aware that the terms and conditions of such website and the website’s privacy policy may be different from those applicable to User’s use of the Services. Makr does not object to links on third-party sites to the homepage of the Services in an appropriate context. However, “framing” or “mirroring” the Services or any of its content is prohibited without the prior written consent of Makr.

 

18. ELECTRONIC COMMUNICATIONS

Makr uses reasonable security measures and takes 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.

 

19. 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.

 

20. 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 support@makr.co. 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.

 

21. ENTIRE AGREEMENTS; AMENDMENTS

These Terms of Service constitute the entire agreement between you and Makr concerning your use of the Services.

 

22. SEVERABILITY

If any provision of these Terms of Service is 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 thereof.

 

23. CERTAIN REMEDIES; NO WAIVER

In addition to any legal or equitable remedies that might otherwise be available, these Terms of Service be enforced with remedies of specific performance and injunction, both of which are expressly deemed reasonable. If User breaches any term hereof, 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 portions hereof 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.

 

24. JURISDICTION; APPLICABLE LAWS; DISPUTES

These Terms of Service will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, as it is applied to agreements entered into and performed therein.  Any action brought to enforce these Terms of Service or matters related to the Services will be brought in either the State or Federal Courts of the Commonwealth of Massachusetts; provided, however, that notwithstanding anything contained in these Terms of Service to the contrary, Makr shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in order to enforce its rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. Any claim or cause of action you have under these Terms of Service or User’s use of the Services:  (i) must be commenced within one year after the claim or cause of action arises, or such claim or cause of action will be barred; and (ii) must be brought individually, and not consolidated as part of a group or class action complaint. These Terms of Service constitute the entire agreement between you and Makr concerning your use of the Services.