ContentFly Inc d/b/a Maker AI (“Maker”) provides an AI-based content generation service through its website located at www.maker.ai (“Site,” and together with such service, including any updated or new features, functionality and technology, collectively the “Services”). These Terms and Conditions (the “Agreement”) apply to anyone (“You”/“User”) who accesses or uses the Services to receive Content (as defined below). All access and use of the Service is subject to the terms and conditions contained in the Agreement.
By accessing or using the Services, you agree to these terms. Please read them carefully as they set out the legal agreement between You (the User) and Maker.
Maker reserves the right, at our sole discretion, to change or modify portions of this Agreement at any time. If we do this, Maker will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. You may read a current, effective copy of thisAgreement by visiting the “Terms of Service” link on the Site. Maker will also notify you of any material changes, either through the Services user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Agreement. You should periodically visit this page to review the current Agreement so you are aware of any revisions. If you do not agree to abide by this or any future Agreement, you will not access, browse, or use (or continue to access, browse, or use) the Service.
THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION ON YOUR LEGAL RIGHTS, REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, OBLIGATIONS AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST MAKER TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST MAKER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST MAKER RESOLVED BY A JURY OR IN A COURT OF LAW. BY ACCESSING OR USING THE SERVICES , YOU AGREE TO THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THIS AGREEMENT, THEN DO NOT USE THE SERVICES.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the content (including text and images) generated by the Services as a result of User Data submitted by the User to the Services and made available to User through the Services;
“User Data” means all electronic data or information submitted by User to the Services;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; and
“Term” has the meaning ascribed to that term in Section 7.1.
2. PROVISION AND USE OF THE SERVICES.
2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Maker may make the Services available to User for User’s personal and/or internal business use during the Term. User’s right to use the Services during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the Services.
2.3 Content. USER ACKNOWLEDGES THAT DUE TO THE NATURE OF THE SERVICES, THE CONTENT MAY NOT BE UNIQUE FOR EACH USER AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. ALL CONTENT IS PROVIDED ON AN “AS-IS” BASIS. MAKER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE CONTENT, WHETHER IN REGARDS TO ITS UNIQUENESS, ACCURACY, ORIGINALITY, SUITABILITY, NON-INFRINGEMENT OR OTHERWISE. USER IS SOLELY RESPONSIBLE FOR THE REVIEW AND APPROVAL OF ANY AND ALL CONTENT PRIOR TO USER’S USE OR PUBLICATION. USER IS SOLELY RESPONSIBLE FOR ANY DECISION OR ACTION THAT IT MAY TAKE, REGARDING THE USE, PUBLICATION OR DISTRIBUTION OF ANY CONTENT, AND MAKER ACCEPTS NO RESPONSIBILITY FOR ANY CONSEQUENCES ARISING FROM SUCH USE, PUBLICATION OR DISTRIBUTION BY USER (INCLUDING WITHOUT LIMITATION ANY CLAIM FOR PLAGIARISM, INFRINGEMENT, ROYALTIES OR OTHERWISE).
2.4 User. User is responsible for all activities that occur on User accounts, including for any and all Content and User Data, and for its compliance with this Agreement. User shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Maker promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws related to the Services.
2.5 Use Guidelines. User shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party; (ii) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Services to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein (including the bypass of Maker’s moderation filters); (vi) attempt to gain unauthorized access to the Services or its related systems or networks; or (vii) use the Services to generate Content that (A) expresses, incites, or promotes hate based on identity, (B) intends to harass, threaten, or bully an individual, (C) promotes or glorifies violence or celebrates the suffering or humiliation of others, (D) promotes, encourages, or depicts acts of self-harm, such as suicide, cutting, and eating disorders, (E) is meant to arouse sexual excitement, such as the description of sexual activity, or that promotes sexual services (excluding sex education and wellness), (F) attempts to influence the political process or to be used for campaigning purposes, (G) is unsolicited bulk content, (H) is false or misleading, such as attempting to defraud individuals or spread disinformation, or (I) attempts to generate ransomware, keyloggers, viruses, or other software intended to impose some level of harm.
2.6 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
2.7 Audit Rights. Maker shall have the right to use the capabilities of the Services to monitor the use of the Services and User’s compliance with this Agreement
3. OWNERSHIP RIGHTS.
3.1 Rights to Content. Subject to terms of this Agreement, to the extent any copyright vests with respect to any Content resulting from User’s submission of User Data to the Services, User will be the owner of such copyright in such Content. As noted above, User acknowledges and agrees that nothing herein restricts Maker or the Services from creating content that is the same or similar to User’s Content. In order to ensure that Maker is not subject to a potential claim of copyright infringement or other claims, User hereby grants Maker and its affiliates a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, sublicensable (through multiple tiers), worldwide, royalty-free, fully paid-up, perpetual license to reproduce, make derivative works of, distribute, perform, display and otherwise exploit the Content. In addition, User irrevocably releases, acquits and forever discharges the Maker Indemnitees (as defined below) of any liability (including without limitation for direct or indirect copyright or other infringement) with respect to any and all Content.
3.2 Rights to the Services. Subject to the limited rights expressly granted hereunder, Maker reserves all rights, title and interest in and to the Services, including all related intellectual property rights therein. No rights are granted to User hereunder other than as expressly set forth in this Agreement. User and its Users are permitted to access the Services solely for User’s personal and/or internal business purposes.
3.3 Restrictions. User shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other timing or use restrictions that are built into the Services; (iii) remove any proprietary notices, labels, or marks from the Services; (iv) frame or mirror any content forming part of the Services; (v) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services; or (vi) otherwise use the Services in violation of applicable law (including any export law) or outside the scope expressly permitted under this Agreement.
3.4 User Data. As between Maker and User, User exclusively owns all rights, title and interest in and to all User Data. User hereby grants Maker a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, sublicensable (through multiple tiers), worldwide, royalty-free, fully paid-up, perpetual license to use, aggregate, collect, analyze and otherwise exploit the User Data and other information relating to the performance of the Services and Maker shall be free (during and after the Term) to (i) use such User Data and other information to improve and provide Maker’s products and services, and (ii) disclose such User Data and other information solely in an aggregated and anonymized format that does not identify User or any individual (“Aggregated Data”). Maker shall own all Aggregated Data created from the User Data.3.5 Suggestions. Maker shall have a royalty-free, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual, unrestricted license to use or incorporate into the Services and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by User relating to the Services.
3.7 Fees and Payment. The Services may be provided on a subscription basis under specific subscription plans offered by Maker from time to time (a “Subscription Plan”). Maker reserves the right to amend the fees on not less than 60 days’ advance notice in writing to User. Except as set forth herein, all payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Fees for such Services will be invoiced monthly in advance or as otherwise as specified in the applicable Subscription Plan. If User purchases a subscription, User will pay Maker the fees specified in the applicable Subscription Plan. If User’s Subscription Plan includes an ongoing subscription that is automatically renewed periodically, User hereby authorizes Maker to bill your payment instrument in advance on such periodic basis in accordance with the terms of the applicable Subscription Plan until User’s subscription expires or is terminated, and User further agrees to pay any charges so incurred. Unless otherwise stated in an invoice, charges are due immediately on the invoice date. User is responsible for maintaining complete and accurate billing and contact information with Maker.Any payment not received from User by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Maker's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.3.8 Taxes. Unless otherwise stated, Maker's Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). User is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Maker's net income or property. If Maker has the legal obligation to pay or collect Taxes for which User is responsible under this section, the appropriate amount shall be invoiced to and paid by User, unless User provides Maker with a valid tax exemption certificate authorized by the appropriate taxing authority.3.9 Suspension of Services. If User's account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Makerreserves the right to suspend the Services provided to User, without liability to User, until such amounts are paid in full.
4. WARRANTIES AND DISCLAIMERS.
4.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. User represents, warrants and agrees that (i) User has all rights necessary to provide any UserData that it provides hereunder, and to permit Maker to use the same as contemplated hereunder; and (ii) all information that User provides to Maker, including without limitation the User Data, are complete, true and accurate.
4.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MAKERMAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAKER FURTHER DISCLAIMS ALL WARRANTIES (I) RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS, OR COMPLETENESS OF THE CONTENT OR ANY PORTION THEREOF THAT IS MADE AVAILABLE THROUGH THE SERVICES; (II) THAT THE CONTENT PROVIDED THROUGH THE SERVICES WILL BE FREE FROM ERRORS, OMISSIONS, DEFECTS, OR DELAYS IN OPERATION, OR FROM TECHNICAL INACCURACIES OR OTHER ERRORS; (III) THAT THE CONTENT OR SERVICES SHALL NOT INFRINGE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY; (IV) THAT THE CONTENT OR SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION.
5.1 Indemnification by User. To the extent permitted under applicable law, User agrees to defend, indemnify and hold harmless Maker, its Affiliates and its and their directors, officers, employees, service providers, licensors, and agents (the “Maker Indemnitees”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, injury (including death) or costs arising out of or relating to User Data, User's use of the Content or Services, User’s connection to the Services, user’s violation of this Agreement, or User’s violation of any rights of another. Maker shall notify User promptly in writing upon becoming aware of any such claim, suit, or proceeding. Maker reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and User agrees to cooperate with any reasonable requests assisting Maker’s defense of such matter. You may not settle or compromise any claim against the Maker Indemnitees without Maker’s written consent.
6 LIMITATION OF LIABILITY.
6.1 Limitation of Liability. IN NO EVENT SHALL MAKER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM USER HEREUNDER, IF ANY, IN THE TWO MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.6.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL MAKERHAVE ANY LIABILITY TO USER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
6.4. New Jersey. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”, “WARRANTIES AND DISCLAIMERS” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
7. TERM AND TERMINATION.
7.1 Term of Agreement. This Agreement shall commence as of the date of the User’s access, use or subscription to the Services and shall continue in effect on a month-by-month basis unless terminated by a party as provided herein (“Term”). Either party may terminate this Agreement without cause on not less than 30 days’ prior notice, or by otherwise following any termination mechanism provided for within the Services.
7.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause under this Section 7.2 by User (but not otherwise), Maker may refund User on a pro-rata basis any prepaid fees for any periods after the termination of the Agreement.
7.3 Termination by Maker. User agrees that Maker, in its sole discretion, may suspend or terminate User’s account or use of the Services and remove and discard any Content within the Services, for any reason, including for lack of use or if Maker believes that User has violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of User’s use of the Services, may be referred to appropriate law enforcement authorities. Maker may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. Useragrees that any termination of User’s access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that Maker may immediately deactivate or delete User’s account and all related information and files in User’s account and/or bar any further access to such files or the Services. Further, User agrees that Maker will not be liable to User or any third party for any termination of User’s access to the Services.
7.4 Outstanding Fees. Termination or expiration of this Agreement shall not relieve User of the obligation to pay any fees accrued or payable to Maker prior to the effective date of termination or expiration of this Agreement,
7.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 3 through 9.
8. DISPUTE RESOLUTION BY BINDING ARBITRATION.
8.1 Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” User agrees that any and all disputes or claims that have arisen or may arise between User and Maker, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Services, or any aspect of the relationship or transactions between the parties, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that User may assert individual claims in small claims court, if User’s claims qualify. Further, this Arbitration Agreement does not preclude User from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against Maker on User’s behalf. User agrees that, by entering into this Agreement, User and Maker are each waiving the right to a trial by jury or to participate in a class action. User’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
8.2 Prohibition of Class and Representative Actions and Non-Individualized Relief. USERAND MAKER AGREE THAT EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH USER AND MAKER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
8.3 Pre-Arbitration Dispute Resolution. Maker is always interested in resolving disputes amicably and efficiently, and most User concerns can be resolved quickly and to the User’s satisfaction by emailing user support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Maker should be sent to [email protected] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Maker and User do not resolve the claim within sixty (60) calendar days after the Notice is received, User or Maker may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Maker or User will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which User or Maker is entitled.
8.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Maker and User agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If User’s claim is for $10,000 or less, Maker agrees that User may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If User’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
8.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Maker or User under the AAA Rules, Maker and User shall split them equally; provided that if User is able to demonstrate to the arbitrator that User is economically unable to pay User’s portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that User should not be required to pay User’s portion of any Arbitration Fees, Maker will pay User’s portion of such fees. In addition, if User demonstrates to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Maker will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
8.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
8.7 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than Section 8.2 titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 8.2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.
8.8 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, Maker agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while User is a user of the Services, User may reject any such change by sending Maker written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, User is agreeing that User will arbitrate any dispute between the parties in accordance with the language of this Arbitration Agreement as of the date User first accepted this Agreement (or accepted any subsequent changes to this Agreement).
9. GENERAL PROVISIONS.
9.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
9.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Maker shall be addressed to the attention of the Legal Department. Notices to User shall be addressed to User’s signatory of this Agreement unless otherwise designated below.
9.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
9.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. To the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
9.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.7 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
9.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Toronto, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
9.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
9.10 Export. User acknowledges and agrees that the Services may be subject to export and import controls under the regulations of Canada, the United States and other countries, and User shall comply with all export and import control regulations of such countries. User shall not use the Services for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. User shall be responsible for procuring all required permissions for any subsequent export, import or use of the Services.
9.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any third party purchase order or in any other third party order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.