Last revision: November 5, 2007
You must be sixteen (16) years of age or over to use the Website. By using this site, you warrant that you have the authority and capacity to enter into this Agreement and abide by all of its terms and conditions.
This agreement will remain in full force and effect while you use the Website and/or are a Member. You may terminate your membership at any time, by following the instructions in the “Deactivate Account” area in the “Account” section, in “My Profile”. We may terminate your membership at any time, for any reason.
3. Other Agreements
If you sign up for Services that are provided by third parties, you may be required to agree to terms of service with those parties. Any such terms are different from, and in addition to, this Agreement.
4. Non Commercial Use and User Conduct
This Service and Website are for the personal use of individuals only. Commercial use is prohibited without the express written permission of the Company. No user may copy, transfer, or use any site contents belonging to or posted by MakeFive or its members for the purpose of selling, engaging in, marketing, or promoting any other product or service. You may not grant any other person or party access to your MakeFive profile for the purpose of extracting information or content.
In addition, you agree not to use the Service or Website to:
- harvest or collect usernames, e-mail addresses, or other personally identifiable information of Members;
- frame or link to the Website, or any other use not expressly permitted in this Agreement;
- use the Site in any unlawful manner, or manner that could damage, disable, overburden, or impair the Site;
- use automated scripts on the site;
- post any Prohibited Content (as outlined in Section 7);
- register for more than one User account, or on behalf of an individual other than yourself;
- impersonate another person or entity, falsely represent yourself, your age, or your affiliations;
- upload, post, transmit, share, or make available any unauthorized advertising, promotion, spam, or solicitation;
- solicit personal information from anyone under 18;
- upload, post, transmit, share, or otherwise make available any material that contains viruses or code;
- intimidate or harass another;
engage in any behavior that is unlawful, harmful to others, or exposes the Company to liability or harm;
use or attempt to use another's account.
MakeFive must be used in a manner that is consistent with any applicable laws and regulations. Although MakeFive cannot monitor the conduct of its Members, we reserve the right to monitor the conduct of the Site's users and take appropriate action in instances where misuse is perceived.
5. Registration Data
In consideration of your use of the site, you agree to (a) provide accurate, current and complete information about you, and update as necessary, as requested in MakeFive's registration forms; (b) maintain the security of your password and identification; (c) be fully responsible for all use of your account and any actions that take place using your account.
6. Rights in Site Content
MakeFive owns and retains all proprietary rights in the Website and Service. You may not copy, modify, publish, transmit, distribute, perform, display or sell any such proprietary content or information without our express written consent.
By publishing, displaying, or uploading (collectively "Posting") any text, links, photos, video, messages, or other data, or information (collectively, "Content") on the website, including your profile, you grant, and warrant that you have the right to grant, to MakeFive an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to copy, perform, display, distribute, create derivative works of, or incorporate in to other works, grant and authorize the sublicensing of such Content.
Members may determine who may view their full profile. By allowing all people to view your profile contents, any user, even those who are not members, may view your profile information. CAREFULLY CONSIDER THE LEVEL OF ACCESS YOU WISH TO ALLOW IN YOUR MAKEFIVE PROFILE. Regardless of your profile settings, a public profile will display your User Name, Profile Image, Lists and Selections, and the URL to your Public Profile.
7. Prohibited Content
MakeFive prohibits content including, but not limited to, that which:
is offensive to the online community;
promotes bigotry, hatred, or harm to others;
involves the transmission of "junk mail" including spam and unsolicited mass mailing;
includes any false or misleading information;
promotes or provides information on illegal activities or abusive conduct;
is threatening, obscene, defamatory, or libelous;
constitutes or includes any unauthorized copy of another's copyrighted work;
displays pornographic or sexually explicit material;
constitutes or includes any commercial activity, without the express written consent of MakeFive.
Although the above is prohibited, there is a chance that you will become exposed to such items while using the Website. If so, neither we, nor any of our officers, directors, employees, shareholders, advertisers, or corporate partners will by responsible for any damages (to or from any party) related to any such exposure.
8. Removal of Content
We may review and delete any Content on any area of the website that we believe to violate this Agreement, be offensive or illegal, or might harm, violate the rights of, or threaten the safety of any other person or party.
9. Copyright and Fair use
Members are solely responsible for the content that they upload, publish, or display ("Post") on the website. You may not post, transmit, or share Content on the Site that you do not have permission to post. The Company may (without notice) delete or remove any site content which is seen to violate copyright.
MakeFive is largely a site for criticism, comment and review. As such, posting of certain copyrighted content is acceptable under Fair use doctrine, as it helps to illustrate an item or topic in discussion. That being said, such use must not violate another’s intellectual property rights. If you feel that the material you are uploading does infringe upon another’s rights, please cease doing so. Additionally, copyright law and Fair use vary from one jurisdiction to another; please be mindful of local regulations.
We respect the intellectual property rights of others and prohibit users from violating another party's intellectual property rights on the MakeFive website. When we receive proper Notification of Alleged Copyright Infringement, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers.
If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification by providing us with the following information in writing:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Send this notification to: Attn: Copyright Complaints, MakeFive, c/o smashLAB, 1205 - 207 W. Hastings St., Vancouver, BC V6B 1H7.
10. Third Party Websites and Content
MakeFive contains links to other websites and content. MakeFive does not monitor, investigate or check these sources for accuracy, appropriateness, or completeness, and we are not responsible for any such content or data. If you leave the site to access Third Party Websites or Content, you do so at your own risk.
11. User Disputes
You are solely responsible for your interactions with other Members. Although we have no obligation to do so, we reserve the right to monitor disputes between Members, and take appropriate action, in our sole discretion.
a. We are not responsible or liable in any manner for incorrect or inaccurate Content, Third Party Applications or Software on or posted to the Website, whether caused by users of the Website, Members, advertisers, corporate partners or any equipment or programming associated with the Website.
b. We are not responsible for the conduct of users of the website, and will not under any circumstances be responsible for any loss, damage, personal injury or death resulting from anyone's use of the website whether online or offline.
c. The Website is provided "as is" and we expressly disclaim any warranty of any kind. No advice or information obtained by you from us, or through the website shall create any warranty not expressly stated herein. We assume no responsibility for any problem, technical malfunction, error, omission, interruption, deletion, defect, delay in operation or transmission, or any injury or damage to any computer equipment belonging to any user of the Website. We cannot guarantee and do not promise any specific results from the use of this Website.
d. The Company reserves the right to change any and all content, software, and other items used, offered, or contained in the Site, at any time, without notice. Reference to any products, services, processes, or other information does not constitute or imply endorsement, sponsorship, or recommendation thereof, or any affiliation herewith, the Company.
14. Limitation on Liability
THE WEBSITE IS PROVIDED “AS IS.” IN NO EVENT WILL THE COMPANY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE, OR ANY SITE CONTENTS.
Notwithstanding any other provision of this Agreement, our entire liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to us for the Service during the term of this Agreement. Except in jurisdictions where such provisions are restricted, in no event will we be liable to you or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profits arising from your use of the Website or the Service, even if we have been advised of the possibility of such damages.
15. Governing Law; Venue and Jurisdiction
If there is any dispute between you and us about or involving the Website or the Service, by using the Website or the Service, you agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions.
16. Arbitration and Equitable Relief
YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE MAKEFIVE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
All notices required under this Agreement must be in writing and refer to the title and Effective Date of this Agreement. Notices shall be effective upon (a) actual delivery to the other party, if delivered in person, or by facsimile, or by national overnight courier; or (b) five business days after being mailed via Canada Postal service, postage prepaid. All notices shall be sent to the address stated in this Agreement or at such other address as either party may provide by advance written notice in accordance with this subsection.
You agree to defend, indemnify and hold harmless MakeFive, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the MakeFive Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the MakeFive Website.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service ("Submissions"), provided by you to Company are non-confidential and shall become the sole property of Company. Company shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
20. No Agency
There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and us or between us and any other Member or user of the Website.
The respective rights and obligations under the Sections headed: Term, Rights in Site Content, User Disputes, Disclaimers, Limitation on Liability, Governing Law; Venue and Jurisdiction, Arbitration and Equitable Relief, Indemnity, Survival, and Other, in addition to any payment obligations incurred pursuant to this Agreement, shall survive the termination or expiration of this Agreement.
Please contact us with any questions regarding this Agreement.