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Makeshark Terms of Service

 

Last Modified: September 25, 2019

The website located at https://www.makeshark.com (the “Site”) is a copyrighted work belonging to Hiestand Hall LLC DBA Makeshark (“Company”, “us”, “our”, and “we”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.


These terms of use (these “Terms”) set forth the legally binding terms and conditions that govern your use of the site. By accessing or using the site, you are accepting these terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these terms (on behalf of yourself or the entity that you represent). You may not access or use the site or accept the terms if you are not at least 18 years old. If you do not agree with all of the provisions of these terms, do not access and/or use the site.


These terms require the use of arbitration (section 10.2) on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute.

1. Accounts


1.1 Account Creation

 

In order to use certain features of the Site, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form to access third party applications like Wix or app.makeshark.com. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your Account.

 

1.2 Account Responsibilities

 

You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

 

2. Access to the Site 

2.1 License

 

Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.

 

2.2 Certain Restrictions

 

The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.

 

2.3 Modification

 

Company reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.

 

2.4 No Support or Maintenance

 

You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Site.

 

2.5 Ownership

 

You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.

 

3. Fees and Payment

 

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 Company. 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 Company 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 Company, 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.


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.


Late fee: 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.
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. 


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.

 

3.1 Domains

 

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


Select Company service packages 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, Company 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. Company reserves 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 termination 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.

 

3.2 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.

 

4. Cancellation; Service Changes


If you cancel the Service, your cancellation will take effect immediately. After cancellation, you will no longer have access to your website and Company may delete all information on your website. We accept no liability for such deleted information or content. 
For as long as Company continues to offer the Service, Company 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.

5. Service Policy

If a user encounters any issues or problems with the Services, please send an email to support@makeshark.com.

 

6. Indemnification

You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms or (c) your violation of applicable laws or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

 

7. Third-Party Links & Ads; Other Users

7.1 Third-Party Links & Ads

 

The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads.  Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.


Company 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.


Third Party Payment Processors: Company uses 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 Policy. 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.

 

7.2 Release

 

You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

8. 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.

9. 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.

 

10. Term and Termination

 

Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5 and Sections 3 through 8.

 

11. General

 

11.1 Changes

 

These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site.  You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

 

11.2 Dispute Resolution

 

Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.


(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

 

(b) Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to the Company should be sent to: 659 High St., Worthington, Ohio 43085.  After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally.  If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

 

(c) Arbitration Rules.  Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section.  If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

 

(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

 

(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

 

(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.

 

(g) Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

 

(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

 

(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

 

(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

 

(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.

 

(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.

 

(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

 

(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

 

(p) Courts.  In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Franklin County, Ohio, for such purpose.

 

11.3 Export

 

The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.

 

11.4 Disclosures

 

Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

11.5 Electronic Communications

 

The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

 

11.6 Entire Terms

 

These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms.  The terms and conditions set forth in these Terms shall be binding upon assignees.

 

11.7 Copyright/Trademark Information

 

Copyright © 2019 Hiestand Hall LLC dba Makeshark. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

 

11.8 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.