1. The Agreement
You represent that you have the requisite authority to enter into a binding legal contract for the Service, and make payment for such Service if required for subscription, individually or on behalf of any entity, partnership, association or other organization for whom you have provided registration information.
2. The Service
3. Your Access to the Service
The Service is for use solely by humans over the age of 18. By creating an account or otherwise accessing the Service, you represent and warrant that you are at least 18.
Access to the Service requires a User account. To create a User account you will need to accept the Agreement, and provide your first name, your last name, a valid email address, and a password of your choice. As between you and others, your account belongs to you. You agree to: (1) try to choose a strong and secure password; (2) keep your password secure and confidential; (3) not transfer any part of your account (e.g., connections, Workspaces); and (4) follow the law and terms of this Agreement. You are responsible for anything that happens through your account. You are responsible for reporting any misuse immediately to firstname.lastname@example.org.
Once a User is registered with the Service, the User account may be affiliated with a Customer. Customers manage the development of User groups and access to and use of digital spaces within the Service (“Workspaces”). Customers can manage many Workspaces and all the development of, and access to, any of their Workspaces’ Content. Customers also manage the affiliations and permissions Users have with the Customer’s Workspaces, including access to and development of the Workspaces, the Workspaces’ Content, and the Workspaces’ User affiliations. A User can gain or request access or membership to a Customer’s Workspace through the Customer’s Workspace page. Your continued access to a Workspace is conditioned upon your compliance with this Agreement, any additional terms and conditions established by a Customer, and such Customer’s continued subscription to the Service. If a Customer with whom you are affiliated terminates or fails to renew its subscription to the Service, your access to the Customer’s Workspaces may be suspended or terminated.
We may change, suspend, or end all or any part of the Service, in our sole discretion, with or without notice. We may suspend access or privileges to any User, Customer, or Workspace.
We reserve the right to limit your use of the Service, including the number of your connections, your ability to contact other Users, access to Content and, to suspend or terminate your account if we believe that you have or intend to breach this Agreement or violate any law.
Pursuant to 47 U.S.C. § 230(d) as amended, Comake hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying providers of such protection is available on the websites StaySafeOnline (http://staysafeonline.org/stay-safe-online/), GetNetWise (http://www.getnetwise.org/), and OnGuardOnline (http://www.onguardonline.com/). Please note that Comake is not affiliated with the above listed sites, nor is the above intended as an endorsement of any of the products or services listed on such sites.
You understand that use of the Service may require payments by you for the services you receive (“Charges”). Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Comake.
We reserve the right to establish, remove and/or revise Charges for any or all aspects of the Service at any time in our sole discretion, by posting or otherwise delivering notice to you. Any use of the Service after a notice of new or revised Charges has been posted on the Service or delivered to you will be deemed your acceptance of these new or revised Charges.
4. Content, Messages and Sharing
The Service promotes sharing of information in many ways, such as messaging, blog posts, discussions, comments, questions, other writings, documents, photographs, artwork, models, other files, folders, links to content, other communications, through your profile and other means (all such information, materials and content referred to in this Agreement as “Content”). As between you and Comake, you are the owner of all Content that you provide to the Service, or that is accessed by the Service with your permission. Content that you share or post may be seen by other Users unless you take specific action to keep such information private. Where settings are available on the Service, we will honor the choices you make regarding access to your Content. We cannot guarantee that any Content you post to the Service will remain private or confidential. We are not obligated to remove any Content you may post on or through the Service, but we reserve the right to remove any Content from the Service in our sole discretion, with or without notice. You promise to provide only Content that belongs to you, is lawfully in your possession, and which you have the right to provide to the Service. Most types of Content can be shared and saved in Public Workspaces or Private Workspaces. By saving or sharing Content into Public Workspaces, rather than Private Workspaces, you agree to allow other Users and Comake to view, collect, and/or download that Content.
By posting or otherwise sharing Content in Public Workspaces on the Service, you grant Comake, Customer, and other Users a limited non-exclusive, non-transferable, worldwide, paid-up license to use such Content for purposes of using the Service. The additional terms applicable to Users of any Customer may be significantly different. It is your responsibility to review such other terms.
We respect to Content that is saved or shared in Private Workspaces (“Private Content”). We will not access or give access to any information that is marked private without express written permission from you. We reserve the right to track individual and aggregate Private Content metrics, including, but not limited to the size of the Content, the number of files marked private, and information surrounding access to the Private Content. These metrics are collected to ensure proper use of Comake and to improve the Service. By posting or otherwise sharing Content in Private Workspaces, you grant Comake and your Customer a limited non-exclusive, non-transferable, worldwide, paid-up license to use such Content for purposes of using the Service. The additional terms applicable to Users of any Customer may be significantly different. It is your responsibility to review such other terms.
By using the Service, you may encounter Content that may be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. We do not review Content provided by Users on the Service. You agree that we are not responsible for any Content posted on the Service for any reason, or for any damages resulting from your use or reliance on such Content.
The Service may feature various community areas and other public forums, including but not limited to blogs or member communities, discussion boards, question and answer areas and comment areas (the "Public Areas"). If you use a Public Area you are solely responsible for your own submissions, the consequences of posting your submissions, and your reliance on any information in the Public Areas or other areas of the Service. Any information you share, including without limitation any discussions with others, in any online Public Area is by design open to the public and is not private. Comake reserves the right, but shall not be obligated, to record any dialogue or exchanges in the Public Areas of the Service. Comake shall have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas of the Service or any submissions by you or other Users.
Upon your acceptance of this Agreement, Comake grants you a limited, non-exclusive, non-transferable worldwide, paid-up license to use the Service on the terms and conditions provided in this Agreement. If you access, download or use our Service or software, such as a stand-alone software product, a software application, or a browser plugin, you agree that from time to time, the software may download and install upgrades, updates and additional features from us in order to improve, enhance, and further develop the software.
You may terminate this Agreement by closing your account. In the event that your account is terminated we reserve the right to keep your information on record and disable your account. We may terminate this Agreement and your access to the Service at any time without notice.
If for any reason we are required to give you notice under this Agreement or otherwise, you agree that we may provide such notice to you at the email addresses that you provided to us at the time of registration. You may update your User information at any time on your profile page.
8. Proprietary Rights
All text, graphics, logos, button icons, images and the selection and arrangement of the content of the Service, as well as the computer programs used to generate the Service are the exclusive property of Comake, its licensors and or affiliates, and are protected by U.S. and international copyright, trademark, patent and other laws, and may not be used or copied without the express written permission of Comake. Comake reserves any and all rights, in all media and technologies existing now or later developed, not expressly granted in this Agreement. The deletion or alteration of any copyright or other proprietary notices from the Service is strictly forbidden.
9. Copyright Policy
Pursuant to Section 512(c)(2) of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act, Comake has designated Andres E. Gutierrez, Tel: (770)309-8717, Email: email@example.com, Copyright Agent of Comake, to receive notifications of claimed infringement. If you believe that your work has been copied and is accessible on our in a way that constitutes copyright infringement, you may notify Comake by providing its Copyright Agent with the following information: (1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (3) Identification of the URL or other specific location on the Services where the allegedly infringing material is located; (4) Your address, telephone number and email address; (5) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized agent to act on behalf of the copyright owner.
10. NO WARRANTY; LIMITATION OF LIABILITY; RELEASE
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT THIS DISCLAIMER IS PROHIBITED UNDER APPLICABLE LAWS, AND WITH ANY LEGALLY REQUIRED WARRANTY PERIOD LIMITED TO THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER COMAKE NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “COMAKE PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, UNCORRUPTED, TIMELY, OR ERROR-FREE.
THE COMAKE PARTIES FURTHER MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT, OR TIMELY. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. COMAKE IS NOT RESPONSIBLE FOR TECHNICAL MALFUNCTIONS OR OTHER PROBLEMS OF TELEPHONE NETWORKS OR SERVICES, COMPUTER SYSTEMS, MOBILE PHONE EQUIPMENT, SOFTWARE, OR EMAIL, INCLUDING TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER'S OR TO ANY OTHER PERSON'S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICES.
THE COMAKE PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT THE COMAKE PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT COMAKE IS LIABLE, UNDER NO CIRCUMSTANCES WILL THE COMAKE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID COMAKE IN THE 90 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT THE CLAIM.
TO THE FULLEST EXTENT PERMITTED BY LAW, THESE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
You forever release, discharge, and covenant not to sue the Comake Parties from any and all liability, claims, actions, and expenses that may arise, whether caused by the negligence of the Comake Parties or otherwise, in connection with your use of the Service or your interaction with any party through or as a result of the Service. In other words, you cannot sue the Comake Parties if anything happens to you or your property from using the Service or interacting with any party through the Service. You agree that the provisions in this section will survive any termination of your account, the Service, or this Agreement.
You agree to defend, indemnify and hold harmless Comake, its licensors and or affiliates, third party providers, and each of their employees, contractors, officers and directors from all liabilities, claims and expenses, including attorney fees that arise from your use of the Service. Comake reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder.
12. Third Party Services
13. Beta Testing
Our Service are currently being tested with certain Customers and Users for purposes of gaining feedback, improvement of our product and Service that we will soon make available to others.
You understand and acknowledge our Service are being provided as a test version in development, and is made available on an “AS IS” and “AS AVAILABLE” basis for the purpose of providing Comake with feedback on the quality and usability of our Service.
Comake reserves the right to modify, suspend or stop our Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, Comake may provide notice of any such changes to the Service by posting them on its website and/or via our Service. You agree that Comake shall not be liable to you or any third party for any modification or cessation of our Service. You understand and acknowledge that Comake has no express or implied obligation to provide, or continue to provide, our Service, or any part thereof, now or in the future; and in addition, Comake may at any time, upon prior notice as required by applicable law, institute charges or fees for our Service.
Comake may impose certain limitations on the use of our Service, including, but not limited to, allocating certain levels of storage capacity to your User and/or Workspace accounts, restricting the number of Affiliated User accounts a Workspace may register, imposing expiration dates on published documents and removing expired documents from our Service. You agree to use our Service only for purposes as permitted by the Agreement and any applicable law or regulation. Comake reserves the right to modify or impose any limitations on the use of our Service at any time, with or without notice to you.
You acknowledge and agree that during our beta testing of the Service:
- The Service is the confidential information of Comake and is made up of pre-release materials and not intended for public release without express written permission from Comake;
- Disclosure of any part of the Service without express written consent from Comake to any competitor of Comake, will cause significant and irreparable harm to Comake, the extent of which may be difficult to ascertain. Accordingly, you agree Comake shall be entitled to injunctive relief as well as all other legal remedies that may be available in the event you breach this Agreement.
14. Usage Rules
In connection with your use of the Service you agree, at all times, to:
- Comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements;
- Provide accurate information to us and keep it updated;
- Use your real name on your profile;
- Use the Service in a professional manner and in accordance with this Agreement.
In connection with your use of the Service you agree, at all times, NOT to:
- Act dishonestly or unprofessionally;
- Post inappropriate, inaccurate, or objectionable Content on our Service;
- Misrepresent your identity, including but not limited to the use of a pseudonym;
- Create a User profile for anyone other than yourself;
- Use or attempt to use another User's account;
- Act in an unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable manner;
- Disclose information that does not belong to you;
- Violate intellectual property rights of others;
- Violate the intellectual property or other rights of Comake including, without limitation, using our trademarks, including “Comake” and any logos, artwork, designs or business name(s), email, or URLs related to our found on this our Service;
- Post any unsolicited or unauthorized advertising, junk mail, spam, chain letters, pyramid schemes, or any other form of unauthorized solicitation;
- Post any Content that contains software viruses, worms, or any other harmful software code;
- Manipulate identifiers in order to disguise the origin of any message or post transmitted through the our Service;
- Creating or operate a fraud or other similar practice;
- Copy or use the Content, content or data of others available on our Service except in the manner expressly authorized;
- Copy or use the Content in connection with a competitive service or for the benefit of any third party;
- Copy or use any part of the Service in connection with a competitive service or for the benefit of any third party;
- Copy, modify or create derivative works of the Service or any related technology, except as expressly authorized by Comake in writing;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Service or any related technology, or any part thereof;
- Imply or state that you are affiliated with or endorsed by Comake without our express prior written consent;
- Rent, lease, loan, trade, sell/re-sell access to the Service or Content;
- Sell, sponsor, or otherwise monetize a Workspace or any other feature of our Service;
- Collect, use, copy, or transfer any information obtained from the Service without our prior written consent;
- Share or disclose information of others without their express prior written consent;
- Use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” our Service or any Content, or to add or download contacts, send or redirect messages;
- Monitor the Service's availability, performance or functionality for any competitive purpose;
- Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of our Service;
- Access or attempt to access the Service except through the interfaces expressly provided by Comake;
- Override any security feature of the Service; and
- Interfere with the operation of, or place an unreasonable load on, the Service.
This Agreement represents the entire binding Agreement between us, and our respective successors and assigns, and supersedes any and all prior understandings, statements or representations, whether electronic, oral or written, regarding Comake, the Service or the information thereon. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced. You acknowledge that, in providing you with access to the Service, Comake has relied upon your consent to be bound by the terms of this Agreement. You further acknowledge that you have read, understand and agree to be bound by the terms of this Agreement. The Service is controlled, operated and administered from the United States of America. Comake makes no representation that the information on the Service is appropriate, available or legal for use outside the United States. If you access the Service from a location outside the United States, you are solely responsible for compliance with local laws. Any provision of this Agreement that is determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provision of this Agreement or affecting the validity or enforceability of such remaining provisions. Comake shall not be liable for any failure to perform its obligations in connection with the Service where such failure results from any act of God or other cause beyond its reasonable control (including, without limitation, any mechanical, electronic or communications failure) which prevents such party from transmitting or receiving any Content, or accessing Content or the Service. Headings or titles of the provisions hereof are for convenience only and shall have no effect on the provisions of this Agreement.
This Agreement and all aspects of the Service will be governed by and construed in accordance with the internal laws of the U.S. and the State of New York governing contracts entered into and to be fully performed in New York (thus, without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in New York, New York, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in New York New York.
You acknowledge that the rights granted and promises made hereunder to Comake are of a unique and irreplaceable nature, the loss of which will irreparably harm Comake and which cannot be replaced by monetary damages alone, so that Comake will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), you and Comake agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to firstname.lastname@example.org.
If you and Comake are unable to resolve a Dispute through informal negotiations within 30 days, either you or Comake may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
Notwithstanding the above, you and Comake agree that arbitration will be limited to the Dispute between Comake and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
You and Comake agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Comake’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.