Terms of Service

Last Revised: December 20, 2019

Welcome to Makeshark’s Terms of Service ("Terms", "Terms of Service")! We are truly excited to have you aboard. Below we have listed important legal terms that apply to anyone who visits our website ("Site") or uses our services ("Services"). These Terms  are necessary in order to protect both you and us, and to make our services possible and more enjoyable for everyone. Hiestand Hall, LLC dba Makeshark (together with its officers, directors, employees, agents, subsidiaries and affiliates, “Makeshark”) offers a wide range of services and features and part of the Terms below may not be relevant to the specific services you use.​ We understand that legal terms can be exhausting to read, and we’ve tried to make the experience more pleasant. If you have any suggestions on how we can improve them, you are more than welcome to contact us at legal@makeshark.com.

1. Acceptance of Terms of Services​

a. By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.

b. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.

c. These Terms of Service apply to all users of the Site or Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.

 

d. ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

2. Eligibility

You represent and warrant that you are at least 13 years of age. If you are under 18 years of age, your use of the Services is subject to requirements of parental consent, in which case your supervising parent or legal guardian is considered the user under these Terms of Service and is responsible for any and all activity. If you are under age 13, you may, upon advance approval of Makeshark and with parental consent, use the site through a student account. 

We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child).

3. Description of Service

Our web-based Service allows users who register for an account (each an “Account Holder”) to create and update an online web site. Once registered, each Account Holder receives his or her own Web Site and may post “Content” defined in SECTION 7. Any new features on the Service, including the release of new Makeshark tools and resources, shall be subject to these Terms. To use the Service, you must have access to the Internet, either directly or through devices that access web-based content and you must pay fees associated with internet access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a web enabled computer. The Service may include certain communications from us, such as service announcements, administrative messages, and the Makeshark Newsletter. These communications are considered part of Makeshark membership. You may not access the Service by any means other than through the Service interfaces that are provided by Makeshark.

4. General Rules of Conduct

You acknowledge and agree that:

a. Your use of this Site and the Services, including any content you submit, will comply with these Terms of Service and all applicable local, state, national and international laws, rules and regulations.

b. You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent. 

c. You will not use this Site or the Services in a manner (as determined by Makeshark in its sole and absolute discretion) that:​

 

  1. Is illegal, or promotes or encourages illegal activity;

  2. Promotes, encourages or engages in child pornography or the exploitation of children;

  3. Promotes, encourages or engages in terrorism, violence against people, animals, or property;

  4. Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;

  5. Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;  

  6. Infringes on the intellectual property rights of another User or any other person or entity;

  7. Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;

  8. Interferes with the operation of this Site or the Services found at this Site;

  9. Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or

  10. Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Makeshark or Makeshark’s Services.

 

d. You will not copy or distribute in any medium any part of this Site or the Services, except where expressly authorized by Makeshark.

 

e. You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.

 

f. You will not access Makeshark Materials (as defined below) or User Content through any technology or means other than through this Site itself, or as Makeshark may designate.

 

g. You agree to back-up all of your User Content so that you can access and use it when needed. Makeshark does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.

h. You will not re-sell or provide the Services for a commercial purpose, including any of Makeshark’s related technologies, without Makeshark's express prior written consent.

 

i. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested. 

 

j. Makeshark reserves the right to modify, change, or discontinue any aspect of this Site or the Services, including without limitation prices and fees for the same, at any time.

 

5. Registration

To register as an Account Holder, you must provide us with a valid email address and other information (“Registration Data”). The account information that you provide us must be your own (or your company’s) and be accurate and complete. To determine the ownership of all Accounts, Makeshark will adhere to the following criteria:

a. You are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, and possess the legal authority, right and freedom to enter into the Makeshark Terms and to form a binding agreement, for yourself or on behalf of the person or entity committed by you to the Makeshark Terms;

 

b. Your country of residence and/or your company’s country of incorporation is the same as the country specified in the contract and/or billing address you provide us;

 

c. You understand that Makeshark does not provide any legal advice or any recommendation with respect to any laws or requirements applicable to your use of any of your End Users, or your compliance therewith;

 

d. You own all rights in and to any content uploaded by you (“User Content”), including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the User Content, as necessary to legally use, publish, transfer or license and all rights and interests in and to such User Content. 

 

e. The User Content is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit, or display in the country in which you or your User’s Website’s visitors and users (“End Users”) reside, or for Makeshark and/or End Users to use or possess in connection with the Makeshark Services;

 

f. You have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the User Content, and you will adhere to all laws applicable thereto.

You will choose a password and account designation for your web sites during the registration process and you will obtain a Makeshark ID. You are responsible for maintaining the confidentiality of the password and account, and for all activities that occur under your account. You must notify Makeshark immediately if any breach of security or unauthorized use of your account. Makeshark will not be liable for any loss you incur due to unauthorized use of your Account. You, however, may be liable for any loss Makeshark or others incur due to unauthorized use of your Account.

In consideration of use of the Service, you agree to maintain and update true, accurate, current and complete Registration Data. If you provide any information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Service or any portion thereof. Individuals under the age of 13 are prohibited from creating or using accounts through Makeshark.com.

6. Proprietary Rights

The Service, all confidential and proprietary software used in connection with the Service, Materials, content contained in sponsor advertisements or in information presented to you through the Service or by its advertisers, and all other materials and services provided by or through Makeshark are owned by Makeshark or other parties that have licensed their materials, content, or provided services to us, and are protected by copyright, trademark, trade secret, and other intellectual property laws.

“Materials” means any necessary software, all informational text, software documentation, design of and “look and feel,” Layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted, as well as derivative works thereof.

Makeshark gives the User permission to use the Materials to the extent, and only the extent, necessary to access and use the Service in accordance with these Terms. This permission does not permit you to store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher, or otherwise attempt to discover any programming code or any source code used in or with the Materials, or otherwise distribute in any way the Materials other than as specifically permitted in these Terms. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Service or Materials other than as specifically permitted in these Terms. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right to the Service or Materials, create derivative works based on or in any manner commercially exploit the Service or Materials, in whole or in part, other than as expressly permitted in these Terms. Any use of the Service or Materials for any purpose other than as specifically permitted herein or without our prior consent or the prior written content of our licensors or advertisers, as applicable, is expressly prohibited. We reserve all rights not expressly granted in these Terms.

All trademarks, service marks, logos, slogans, and taglines (individually and collectively “Mark” or “Marks”) are the property of Makeshark and their prospective owners. Except as otherwise specifically provided herein, no license or right to use any Mark is granted without the express written permission of Makeshark or the respective third-party Mark owner.

We do not want to receive confidential or proprietary information from you through the Service or by email. Unless otherwise agreed to in writing by an authorized Makeshark representative, any material, information or idea you transmit to us by any means may be used by us or our affiliates without compensation or liability to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. However, this provision does not apply to Content or personal information that is subject to our Privacy Notice. 

7. User Content

Some of the features of this Site or the Services may allow users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice (“User Submissions”), or (b) literary, artistic, musical, or other content including but not limited to photos and videos (together with User Submissions, “User Content”). You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account. We do not control the Content you post via the Service. 

If you have a website or other content hosted by Makeshark, you shall retain all of your ownership or licensed rights in User Content. Makeshark does not claim ownership of your Content, but you give us permission to host your Content on this Service. This permission exists only for as long as you continue to use the Service or remain an Account Holder. 

By using the Service, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstance will we be liable for your Content or the content of any third party, including, but not limited to, any errors or omissions in your Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise may available via the Service. We shall also have the right to remove any Content that is available via the Service. We shall also have the right to remove any Content that violates these Terms or is otherwise objectionable in our sole discretion.

You acknowledge and agree that we may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect our rights, property, or personal safety and those of our users and the public. 

The technical processing and transmission of the Service, including Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements or connecting networks or devices.

You will not:

a. Upload, post, transmit, or otherwise make available any Content that:

  1. is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;

  2. you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

  3. infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party (e.g., music, movies, images, e-books, or games that you do not own the rights to);

  4. is unsolicited commercial email or “spam.” This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as sending mass email to recipients who have not requested email from you or with a fake return address; promoting a site with inappropriate links, titles, descriptions, or promoting your site by posting multiple submissions in public forums that are identical;

  5. contains software viruses, worms, Trojan horses or any other computer code, files, or programs that interrupt destroy, or limit the functionality of the Service, computer software or hardware or telecommunications equipment, o may impact the ability of any Makeshark User to access the Service;

  6. is intended to take advantage of a user, such as a “get rich quick,” “get paid to surf,” pyramid/multi-level marketing or other dubious schemes; or is adult in nature, such as any nudity in a sexual context or any Content with adult themes or reveals exposed genitalia;

 

b. Harm minors in any way; 

 

c. “Stalk,” “bully,” or otherwise harass another;

 

d. Impersonate any person or entity, including, but not limited to, a Makeshark official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;

 

e. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service; 

 

f. Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;

 

g. Intentionally or unintentionally violate any applicable local, state, federal or foreign laws or regulations. You must comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. If you use the Site, the Service, or the Materials outside of the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation, rules regarding acceptable online conduct, data privacy, and export and import regulations of other countries;

 

h. Promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices; 

 

i. Use the service as a forwarding Service to another web site or to fraudulently manipulate Google or other SEO ranking or Facebook or other social networking or website “likes” and similar voting mechanisms;

 

j. Solicit a third party’s passwords or personal identifying information for unlawful or phishing purposes;

 

k. Exceed the scope of the Service that you have signed up for (e.g., by accessing and otherwise using the tools that you do not have a right to use, or deleting, adding to, or otherwise changing other user comments or content);

 

l. Include more than three (3) ad units per page, or any advertising that greatly reduces the usability of the Site;

 

m. Upload files for the sole purpose of having them hosted by us and for use outside of the web site created using the Service (i.e., created with the Makeshark editor);

 

n. Create a web site that provides an injurious user experience with custom programming. Examples include, but are not limited to, extreme flashing banners, excessive animated movement, or content that could provoke seizures in unsuspecting visitors; or

 

o. Use, under any circumstance, any open source software subject to the GNU Affero General Public License v.3, or greater. 

We retain the right to terminate any account or user who has violated any of the above prohibitions. 

 

8. Monitoring of Content; Account Termination Policy

Makeshark generally does not pre-screen User Content. However, Makeshark reserves the right (but undertakes no duty) to do so and may decide whether any item of User Content is appropriate and/or complies with these Terms of Service. Makeshark may remove any item of User Content and/or terminate a User’s access to this Site or Services for posting or publishing any material in violation of these Terms of Service, or for otherwise violating these Terms (as determined by Makeshark in its sole and absolute discretion), at any time and without prior notice. Makeshark may also terminate a User’s access to this Site or Services if it is believed that the User is a repeat offender. If Makeshark terminates your access to this Site or Services, Makeshark may, in its sole discretion, remove and destroy and data and files stored by you on its servers.

9. Trademark and/or Copyright Claims

Makeshark supports the protection of intellectual property. If you would like to submit a trademark claim for violation of a mark on which you hold valid, registered trademark or service mark or a copyright claim for material on which you hold a bona fide copyright, please report your concerns to Makeshark at legal@makeshark.com.

10. Links to Third-Party Websites

This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by Makeshark. Makeshark assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. By using this Site or Services, you expressly release Makeshark from any and all liability arising from your use of any third-party website.

11. Availability of Website/Services

Subject to the Terms of Service and our other policies and procedures, we shall use reasonable effort to attempt to provide this Site and Services on a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason, including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunications or digital transmission links, hostile network attacks, network congestions or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and we assume no liability to you or any other party with regard thereto.

12. Selling Through Makeshark

Some of our Services and Materials may offer you the opportunity to sell or purchase goods and services through sites hosted or designed by Makeshark (such goods and services, “Commercial Products”). We are merely providing the platform for buyers and sellers to conduct transactions for these Commercial Products.

In order to sell through Makeshark, you must be18 years or older, or at least the age of majority where you reside or from where you use the Services. You must provide your full legal name, current address, valid email address and any other information requested by us. In the event of a dispute regarding account ownership, we reserve the right to request documentation to determine or confirm account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.

When a buyer purchases Commercial Products, payments will be processed through our third party payment service provider. Buyers of Commercial Products will be provided a notice when entering their payment information, directing them to the third party payment service provider’s terms of service and privacy policy. These payment services are governed solely by the third party provider’s terms of service and privacy policy. We are not responsible for the actions of these third party service providers. In addition to the other rules and requirements described in these Terms, you must follow the rules listed below when offering, selling, or purchasing Commercial products.

 

YOU WILL NOT:

a. Offer or sell any Commercial Products that:

  1. are illegal or potentially illegal, including those that are counterfeited, stolen, or fraudulent. Commercial Products sold using the Services must comply with all applicable laws, including Commercial Products sold to individuals outside of the U.S.;

  2. infringe or have the potential to infringe the intellectual property or privacy rights of another or that may be libelous, slanderous, or otherwise defamatory;

  3. we determine, in our discretion, are inappropriate, offensive, pornographic, sexually explicit, or violent; or

  4. are manufactured as, or primarily intended to be used as, weapons, including firearms, restricted devices, or ammunition. We reserve the right to determine, in our sole discretion, whether Commercial Products without first obtaining that third party’s permission.

 

13. Fees and Payments

You agree to pay any and all prices and fees due for services purchased or obtained at this Site (the “Services”) at the time you order the Services. Prices of all Services are subject to change upon 30 days’ notice from Company. Such notice may be provided at any time by posting the changes to the Site.

You agree to fulfill the length and terms of the agreement made with Makeshark. Some features of the Services require payment, as described for each Service on the Site (“Fees”). If you sign up for these features, you must pay all applicable feature Fees. Furthermore, you authorize Makeshark to make any and all reasonably necessary inquiries to validate your account and financial information.

All Fees are in U.S. Dollars and are exclusive of taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment thereof. If you purchase any Services that we offer for a Fee, you consent to Makeshark, or our third party service providers, storing your payment card information and you authorize us to charge you any Fees for Services you may purchase, and any applicable taxes in connections with your use of the Services to the payment card you provide, and you will reimburse us for any and all collection costs and interest for any overdue amounts.

13.1 Payment Methods

You may edit your Payment Method information on our website at: https://www.makeshark.com/update-payment (or through the update payment link on your previous invoice). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. We may update your Payment Method with information provided by the applicable payment service provider, and you authorize us to continue to charge the fee to the updated Payment Method. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges. Check with your Payment Method service provider for details.

If you are being billed on a monthly basis, your monthly billing date will be the 1st of every month. If your subscription begins or ends on a date other than the 1st of the month, your bill will be prorated accordingly.

You may be charged fees related to late or non-payments if for any reason we do not receive payment for our goods or services by the due date or you pay less than the full amount due for our goods and services.

13.2 Late Fees

You will be charged a daily late fee of 3% of any payment amount (e.g., monthly fees or other charges) assigned in any single month that has not been paid by your due date if payment is not made in full by the 7th day of delinquency. You will be charged a daily fee of 3% of the payment amount, beginning on the 8th day of nonpayment, not to exceed 100% the of payment amount. If payment amount is not made in full after 30 days (including late fees), your website will be shut down. If payment amount is not made in full after 90 days (including late fees), all associated data with your website will be deleted and your account will be sent to collections. You remain responsible for the entire contract and will be charged accordingly. Additional Fees may apply to restart service. Customers with bad credit or a history of delinquency may be required to pay a security deposit.

13.3 Refunds

You acknowledge and agree that where refunds are issued to your Payment Method, Company’s issuance of a refund receipt is only confirmation that Company has submitted your refund to the Payment Method charged at the time of the original sale, and that Company has absolutely no control over when the refund will be applied towards your Payment Method’s available balance. You further acknowledge and agree that the payment provider and/or individual issuing bank associated with your Payment Method establish and regulate the time frames for posting your refund, and that such refund posting time frames may range from five (5) business days to a full billing cycle, or longer.

13.4 Term/Auto-Renewal

AT THE END OF THE CONTRACT TERM, YOUR CONTRACT WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL CONTRACT TERM UNTIL EXPLICITLY CANCELLED BY YOU, AND YOUR PREFERRED PAYMENT METHOD WILL BE CHARGED ACCORDINGLY. YOU MAY TURN OFF THE AUTO-RENEW FEATURE FOR YOUR CURRENT CONTRACT AT ANY TIME. YOU MAY SEND CANCELLATION REQUESTS BY EMAIL TO SUPPORT@MAKESHARK.COM.

14. Cancellation; Service Changes

You may provide notice to cancel Service (“Cancellation”) 30 days prior to the beginning of your next Contract Term. Cancellation requests must be submitted to support@makeshark.com. Cancellations will be effective upon the expiration of your current Contract Term. After cancellation, you will no longer have access to your web site and we may delete all information on your website. We accept no liability for such deleted information or content.

For as long as we continue to offer the Service, Makeshark will provide and seek to update, improve, and expand the Service. As a result, we allow you to access the Service as it may exist and be available on any given day and have no other obligations, except as expressly stated in these Terms. We may modify (e.g., change data storage or capacity limits), replace, refuse access to, suspend or discontinue the Service, partially or entirely, or change and modify prices for all or part of the Services for you or for all of our users in our sole discretion. All of these changes are effective upon their posting on our site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and or discard any Content available as part of your Account, with or without notice if deemed by us to be contrary to these Terms. For avoidance of doubt, we have no obligation to store, maintain, or provide you a copy of any Content that you or others provide when using the Service.

15. Third Party Services;Software, and Websites

Makeshark is not responsible or liable for any loss or damage incurred as a result of your use of any third party’s service, product, software, content, or website (collectively, “Third Party Materials”) whether or not you were linked to or directed to any Third Party Materials through the Site. Third party materials, such as email, e-commerce and payment services including but not limited to: Authorize.net, PayPal, Square, and Stripe payment processors and facilitators, may be subject to the applicable third party terms of service and privacy policies. You are solely responsible for reviewing, agreeing to, and complying with such terms before you use any Third Party Materials. Your use of any Third Party Materials is at your own discretion and risk. If you do not agree to the third party’s terms of service or license agreement, do not download or use the Third Party Materials. Your use of any Third Party Materials obtained through the Service does not transfer to you any rights, title or interest in or to the Third Party Materials beyond the terms contained in the third party provider’s terms of service or license. Any reference on the Site to any Third Party Materials is not an approval or endorsement by us of such Third Party Materials.

15.1. Third Party Payment Processors

 

Makeshark used Third Party payment processors to assist us in securely processing your personally identifiable payment information. Such third party processors’ use of your personal information is governed by their respective privacy policies which may or may not contain privacy protections as protective as the Makeshark Privacy Notice. Payments are currently processed and managed using the Third Party processors below. We will inform you which processor is being used when processing your payment.

 

16. Resale of Service

You will not reproduce, duplicate, copy, sell, or exploit any portion of the Service without our express written permission, which may be in the form of a separate written agreement with Makeshark. 

 

17. Domains

For the domain name registration services (“Domain Services”) provided to you by Us, the following terms and conditions apply. Your use of the Domain Services provided by Us serves as your consent to these terms.

Select Services provide the registration of an Internet domain name or the renewal of an existing domain name (“Domain Name”) on your behalf. For the purpose of procuring and/or maintaining domains, We will only act as the agent between you and the organization responsible for domain name allocation (the “Registrar”). Currently, the Registrar for Domain Services is domains.google.com. As such, all registrations and renewals via the Services are subject to the domains.google.com Terms and Conditions located at https://domains.google.com/tos. We reserve the right to utilize another domain name service provider at any time, in which case the terms and conditions of that organization will apply on conjunction with these Domain Terms.

The Domain Name will be registered in Makeshark’s name and transferred to you upon Cancellation of the Services, as long as you do not owe an outstanding balance, including any late fees.

The technical contact in all cases will be Company. Before applying for a Domain Name, it is your responsibility to check that the Domain Name does not violate the rights of any third party or contravene existing legislation. We may defer activation of a Domain Name until payment of the agreed fees for the registration services have been received.

Company is in no position to influence the allocation of the Domain Name by the Registrar. We cannot guarantee that the requested domains will be allocated to you and/or that allocated Domain Names are free of third parties or their continued existence. Any information we provide regarding the availability of a Domain Name is based on the data provided by third parties and only refers to the time that information is requested.

17.1 ICANN

Your use of our Domain Services is subject to the policies, including without limitation the dispute resolution policies, of the Internet Corporation for Assigned Named and Numbers (“ICANN”). Your rights and responsibilities as a domain name registrant under ICANN’s 2009 Registrar Accreditation Agreement can be found at https://www.icann.org/resources/pages/responsibilities-2014-03-14-en.

18. Successors and Assigns

These Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.

19 Indemnity

You will indemnify and hold harmless Makeshark, and its subsidiaries, licensors, affiliates, officers, directors, agents, co-branders, partners, employees, successors, and assigns (collectively (“Indemnified Parties”) from any and all liability, loss, claim, damages, expenses, costs, or demands, (including but not limited to reasonable attorneys’ fees), incurred or made against the Indemnified Parties by any third party in connection with any claim arising from or relates to: (a) your use (or anyone using your account(s)) of the Service, the Site or the Materials, (b) your Content, (c) any Commercial Products you offer on or through the Site in using our Services, or (d) your use of Domain Services. This includes, but is not limited to, any breach or violation of these Terms by you or anyone utilizing your Account. You must fully cooperate at your expense as required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.

20. Disclaimers

THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.  WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

21. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.  YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

22. U.S. Government Restricted Rights

The materials on the Service are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the materials by the U.S. Government constitutes acknowledgement of our proprietary rights in them.

23. Agreement to Arbitrate; Class Waiver

We want to address your concerns or issues before filing a claim against Makeshark. Please contact us at support@makeshark.com. We will contact you by email to informally resolve the dispute. You or Makeshark may start a formal dispute resolution process, if a dispute is not resolved within 10 business days of your submission.

 

YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS AND YOU WILL NOT FILE A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION (E.G., CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR CONSOLIDATION WITH OTHER ARBITRATIONS).

 

YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.

 

This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned. The prevailing party in any action or proceeding arising from these Terms will be entitled to costs and attorney's fees. 

 

Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or to enforce intellectual property rights (e.g., copyright, trademark, trade secret, or patent rights) without first engaging in our informal dispute resolution process or arbitration. 

23.1. Severability

 

If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.

24. Governing Law and Jurisdiction

These Terms of Service shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to the conflict of law’s provisions thereof, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Columbus, Ohio.

25. Modification

We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.

26. Entire Agreement and Severability

 

These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder 

 

27. Miscellaneous

27.1. Force Majeure

We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. 

 

27.2. Assignment

 

These Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. 

 

27.3. Agency

 

No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect. 

 

27.4. Notices

Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to support@makeshark.com

 

27.5. No Waiver

 

Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives. 

 

27.6. Headings

 

The section and paragraph headings in these Terms of Service are for convenience only and shall not affect their interpretation.

28. Contact Information

To get in touch with our customer service, please send an email to support@makeshark.com. Notices may be sent to Makeshark, 659 High St., Worthington, Ohio 43085. 

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Indiana: 13110 Harrell Pkwy #100 Noblesville, IN 46060

Hours: Mon–Fri 9am to 5pm