Last Updated: March 4, 2016
MAKETIME PLATFORM BASICS
Basics. As set forth above, MakeTime makes available an online platform where MakeTime will match Purchasers seeking to have certain Subject Parts manufactured with Suppliers with the capacity and expertise to meet the Purchasers’ needs.
YOU ACKNOWLEDGE AND AGREE THAT MAKETIME DOES NOT PROVIDE MANUFACTURING OR ENGINEERING SERVICES OR FUNCTION AS A MANUFACTURER OR ENGINEER IN ANY CAPACITY.
Opening a MakeTime Account. In order to register as a Purchaser or a Supplier on the Platform you must create a MakeTime account (“MakeTime Account”), and in doing so you affirmatively represent, warrant and covenant to MakeTime that: (i) you are at least eighteen (18) years of age; (ii) you will maintain only one MakeTime Account at any given time; (iii) you have full power and authority to enter into to this Agreement and doing so will not violate any other agreement to which you are a party; and (iv) your registration and your use of the MakeTime Platform is in compliance with all applicable laws and regulations.
To obtain a MakeTime Account you must provide a valid e-mail address, supply a username and password as well any such other additional information as MakeTime shall require. It is your responsibility to maintain the confidentiality of your user name and password, and by submitting to the registration process, you agree that: (i) you are fully responsible for all manners of the use of your user name and password; (ii) you will keep your user name and password confidential and not share it with anyone else; (iii) you will immediately notify MakeTime of any unauthorized use of your user name and password or MakeTime Account; and (iv) MakeTime will not be liable for any damage or loss that may arise due to improper use of your user name and password by you or someone else with or without your authorization, except to the extent such use was caused by MakeTime’s gross negligence or intentional misconduct.
Users will also be required to provide to MakeTime certain banking information to enable MakeTime to remit payments due hereunder (collectively, “Payment Information”). You hereby acknowledge and agree that MakeTime may in its sole discretion, take such actions as it may deem necessary to verify the accuracy of such Payment Information. In regard to the Purchaser’s use of the MakeTime Platform all Purchasers hereby authorize MakeTime to collect the Acquisition Fees (as hereinafter defined) at such times and amounts specified on the MakeTime Platform by charging and/or deducting such Acquisition Fees in accordance with the Purchaser’s applicable Payment Information provided to MakeTime.
In addition to the foregoing, in order to a register as a Supplier on the Platform you will be required to submit to MakeTime certain information regarding your operations, facilities, capacity, history, equipment, workforce, as well as such other information that MakeTime may request from time to time (“Suppler Information”). You hereby further agree to provide MakeTime with project information including but not limited to project updates, final number of parts produced and any additional information MakeTime deems appropriate to facilitate future job placements as determined in MakeTime’s sole discretion.
By registering for a MakeTime Account, you acknowledge and agree that MakeTime is permitted to access, preserve, and disclose your account information or User Content (as defined below) if it is required to do so by law or based upon a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) enforce this Agreement; (ii) comply with any mandatory requests for information made by a law enforcement agency, internet service provider or other third-party in the course of a legal proceeding; or (iii) protect the rights and/or safety of MakeTime, the MakeTime Platform, other Users or the public.
Notifications and Service Messages. MakeTime may provide notifications about your MakeTime Account or the MakeTime Platform to Users via email notice, written notice, through posting on the MakeTime Platform, or through other means including mobile telephone, as determined by MakeTime in its sole discretion, to which you hereby consent. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, without limitation, your failure to receive critical information and notices about the MakeTime Platform as a result thereof except to the extent that such failure was caused by MakeTime’s gross negligence or intentional misconduct.
PROJECT SUBMISSION, BOOKING AND FULFILMENT
Submitting a Request. Once a Purchaser has created a MakeTime Account, such Purchaser will be able to submit to MakeTime a project request pursuant to which the Purchaser will be required to provide MakeTime with certain information regarding the Subject Parts the Purchaser is seeking to have manufactured, such as the type, the quantity thereof, materials to be involved with the manufacture of the Subject Parts, ex., steel, aluminum, wood, etc. (“Materials”), dates by which the Subject Parts must be received (“In-hand Dates”), shipping location for the finished Subject Parts, and such other information as MakeTime may request, which may include, without limitation, models and drawings of the Subject Parts (collectively, Purchaser Specifications”). Upon MakeTime’s receipt of the Purchaser Specifications MakeTime will match the proposed job with a capable Supplier based on an analysis of the Subject Parts, associated processes and Purchaser Specifications and will compile an estimate for the Purchaser for the overall costs that will be involved with the completion of such proposed job (“Estimate”). The Users hereby agree that MakeTime is free to reject any request for an estimate for any reason and acknowledge that only requests for estimates that meet the capabilities of our Supplier base and are accompanied by all required information to complete the manufacture of the Subject Parts will be accepted and processed by MakeTime. All Purchasers agree that the In-hand Dates included in the Purchaser Specifications and the overall market conditions at the time of the remittance of the request for quote may affect MakeTime’s pricing. A Purchaser’s request for an estimate for the same Subject Products at a later date may yield a different overall cost based upon these variables and others. All Estimates are subject to change either before or after a Purchaser’s acceptance of such Estimate, as a result of any changes that are requested by the Purchaser and accepted by MakeTime. Upon acceptance of an Estimate a Purchase Order is generated.
MakeTime does not endorse any Supplier. Suppliers are required to provide accurate Supplier Information, and although MakeTime may undertake additional checks and processes designed to help verify or check the identities or backgrounds of Suppliers, we do not make any representations about, confirm, or endorse any Supplier or a Supplier’s facility or equipment.
Bookings. Upon a Purchaser’s acceptance of a MakeTime Purchase Order the Purchaser will be obligated to remit to MakeTime 100% of the costs set forth in the Purchase Order (“Acquisition Fees”), which shall be non-refundable unless otherwise provided herein or on the MakeTime Platform. Of these Acquisition Fees collected by MakeTime, 15% of the fees that are due to the Supplier will be remitted to the Supplier upon the Supplier’s acceptance of the Purchase Order to manufacture the Subject Parts, while the remaining 85% (“Escrowed Funds”), shall be remitted to the Supplier upon the earlier of (i) MakeTime’s receipt of the Purchaser’s approval to remit such Escrowed Funds to the Supplier; or (ii) ten (10) days from the delivery of the Subject Parts at the Purchaser’s facility in the event MakeTime does not receive an approval or disapproval from the Purchaser during such time period regarding the payment of such fees.
A Purchase Order that has been accepted by a Purchaser and confirmed by a Supplier (“Confirmed Job”) may not be cancelled by such Purchaser without MakeTime’s prior written consent and shall be subject to the Purchaser’s forfeiture of 100% of the Acquisition Fees. Of these retained Acquisition Fees the Supplier shall be entitled to receive payment in an amount equal to the (i) Supplier’s actual costs incurred prior to the cancellation of such Confirmed Job, which shall be documented and reasonably acceptable to MakeTime (“Supplier Costs”); plus (ii) the product of the Supplier Costs and 10% (collectively, “Cancellation Fees”). In the event that the amount of the fees that have been remitted to the Supplier prior to the termination of the Confirmed Job are less than the Cancellation Fees due to the Supplier hereunder MakeTime shall release the excess amount due to the Supplier from the Escrowed Funds within ten (10) days of the date of the termination. In the event that the amount of the fees that have been remitted to the Supplier prior to the termination of the Confirmed Job are greater than the Cancellation Fee the Supplier shall deliver such excess amount to MakeTime within ten (10) days of the date of the termination via the delivery of a certified check or wire transfer of immediately available funds. Any Escrowed Funds remaining after the payment of the Cancellation Fees shall be retained by MakeTime as a cancellation penalty.
Any cancellation or other non-completion of a Confirmed Job by a Supplier shall be governed by the Platform’s Bonding Program, more fully described below.
Materials; Communications. Upon a Purchaser’s acceptance of a Purchase Order MakeTime shall arrange for the acquisition and delivery of the Materials to the Supplier and shall manage all communications between the Purchaser and Supplier throughout the process. All Purchasers and Suppliers hereby agree not to communicate directly with one another regarding the manufacture of a Subject Part either before the acceptance of a Quote or prior to the delivery of a Subject Product without MakeTime’s prior written consent. All Users agree not to attempt to circumvent MakeTime’s involvement in the manufacture of any Subject Parts under any circumstances.
Supplier Warranties. All Suppliers expressly agree and warrant that (i) all Supplier Information submitted by the Supplier to MakeTime, is accurate and truthful in all respects; (ii) the Subject Parts will be manufactured exclusively on the Supplier’s equipment that has been reserved by MakeTime and included within an underlying Purchase Order, unless otherwise agreed to in writing by MakeTime; (iii) all Materials and logistics that are provided and arranged by MakeTime shall be used exclusively for the manufacture of the Subject Parts, unless otherwise agreed to in writing by MakeTime; (iv) all Subject Parts shall be manufactured in compliance with the Purchaser’s Specifications; and (v) all Subject Parts shall comply with all applicable laws. All warranties, whether express or implied, relating to the Subject Parts shall run from the Suppliers to MakeTime, the Purchasers, their successors, and assigns. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THIS AGREEMENT, THE SUPPLIER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OR ANY KIND, EXPRESS OR IMPLIED, AND THE SUPPLIER DISCLAIMS THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Subcontracting. The Suppliers will not use subcontractors for the manufacture of any of the Subject Parts, or the performance of any of the Supplier’s other obligations hereunder, without MakeTime’s express written consent.
Monitoring and Compliance. All Suppliers authorize MakeTime and its designated agents (including third parties) to engage in monitoring activities to confirm compliance with this Agreement, including on-site inspections of manufacturing facilities and reviews of books and records during Supplier’s normal hours of business.
Delivery. MakeTime will coordinate the delivery of all Subject Parts from Suppliers to Purchasers via third party carriers on the Supplier’s behalf. Title to the Subject Parts and risk of loss or damage to such Subject Parts will pass to the Purchaser upon the delivery of the Subject Parts to the Purchaser’s facility and both the Purchasers and Suppliers hereby acknowledge and agree that at no time shall title to the Subject Parts pass to MakeTime. All missing or damaged shipments or Subject Parts must be reported within ten (10) days of delivery to the Purchaser per the Bonding Program set forth below.
Bonding Program. All Confirmed Jobs will be covered by a surety bond covering the Supplier’s performance of such Confirmed Job (each a “Subject Job”) in favor of the Purchaser of such Subject Job. Each such surety bond shall be provided by a reputable surety company (each a “Participating Surety”). In the event that a Purchaser determines that (i) a Supplier has failed to timely complete a Machine Time in accordance with the agreed upon terms (“Completion Default”); or (ii) that a Subject Product is of unacceptable quality within seven (7) days of the delivery of such Subject Part to the Purchaser (“Product Default”), such Purchaser shall be required to submit a written claim evidencing such Completion Default or Product Default, as applicable (“Bond Claim”), to MakeTime via (i) email (with confirmation of receipt) to [email protected]; or (ii) registered or certified mail to MakeTime Inc., 446 East High Street, #110, Lexington, Kentucky 40507, Attn: Jeffrey Markowitz. All Bond Claims will be forwarded on to the applicable Participating Surety, who shall review such Bond Claims within a reasonable amount of time, which process may include, without limitation, contacting the Supplier involved with the Bond Claim and reviewing such documentation as the Participating Surety shall deem appropriate. In this regard, until full performance of a Supplier’s obligations of a Subject Job and exoneration of the underlying bond, in the Participating Surety’s sole determination, the Participating Surety may freely access, examine and copy the Supplier’s books, records, credit reports, financial statements, bank account records, accounts or any other financial records or any form (collectively, “Records”). All Suppliers hereby authorize third parties in possession of all such Records to furnish them and any other information such third parties may have in connection with a Subject Job as may be requested by the Participating Surety. Pending the resolution of a Bond Claim a Supplier may be temporarily suspended from undertaking any further jobs on the Platform until such Bond Claim has been resolved and may have any Confirmed Jobs currently in process reassigned by MakeTime, in its sole discretion, to other Suppliers.
All Suppliers hereby acknowledge and agree that the Participating Sureties may, in their sole discretion, deny, pay, compromise, defend or appeal any Bond Claim or suit against an underlying bond. An itemized statement of, or sworn voucher from a Participating Surety attesting to the loss, shall be prima facie evidence of the loss. All Suppliers expressly waive notice of any Bond Claims or demand against the underlying bond or information provided to the Participating Sureties and hereby agree to fully indemnify the Participating Sureties and to defend and save them harmless from any and all losses incurred as a result of the issuance of the bond(s), including, without limitation, any interest, costs, attorneys’ fees, incurred by the Participating Surety by reason of any claims against the Participating Sureties under any such bond(s) issued by the Participating Surety. All Suppliers hereby acknowledge and agree that any amounts due to a Participating Surety hereunder may be paid to the Participating Surety via the release of the Escrowed Funds by MakeTime to the Participating Surety.
If after receipt and review of the Bond Claim the Participating Surety determines that the Supplier is in default the Participating Surety shall either, at the Purchaser’s discretion, (i) engage a new Supplier to complete the Subject Job; or (ii) refund the Acquisition Fees for such Subject Job to the applicable Purchaser. In the alternative, if after receipt and review of the Bond Claim the Participating Surety determines that the Supplier is not in default, MakeTime, upon notification from the Participating Surety, shall release the Escrow Funds and the Subject Job at issue shall be deemed complete. All Suppliers hereby irrevocably appoint the Participating Sureties, or their designees, as its attorney-in-fact with the right and power, but not the obligation, to exercise all of the rights assigned to the Participating Sureties in this Agreement, and to make, execute and deliver any and all additional contracts, instruments, assignments, documents or papers (including, without limitation, the endorsement of checks or other instruments payable to the Supplier representing payment of monies) deemed necessary and proper by the Participating Surety in order to give full effect to the intent and meaning of the assignments and rights contained herein. It is expressly agreed that this power-of-attorney is coupled with the interest of the Participating Sureties in receiving the indemnification from the Suppliers. All Suppliers hereby ratify all acts by the Participating Sureties of their designees as attorneys-in-fact.
In the event of a default on the part of a Supplier as set forth herein, in addition to the foregoing, MakeTime may impose additional penalties or consequences to the Supplier, which may include, without limitation, (i) publishing an automated review on the Supplier’s MakeTime Account indicating that a default has occurred on an accepted Machine Time; and/or (ii) imposing a cancellation fee, in an amount to be determined by MakeTime, in its sole discretion.
All Suppliers hereby agree and acknowledge that a Participating Surety’s resolution of a Bond Claim shall be final and binding on all such parties, on behalf of themselves, their predecessors, successors, parents, subsidiaries, affiliates, assigns, representatives and agents hereby release and forever discharge such Participating Surety and MakeTime, their predecessors, successors, parents, subsidiaries, affiliates, assigns, representatives and agents, as well as all of their present and former directors, officers, employees, agents, shareholders, representatives, attorneys and insurers, from any and all claims, causes of actions, demands, debts, obligations, damages or liability of any nature whatsoever, known or unknown, which the Suppliers have or may have which arise out of or in connection with a Bond Claim.
Rules of Use. As a condition to accessing the MakeTime Platform, each User agrees to abide by this Agreement and to strictly observe the following:
- All Suppliers shall comply with the Code of Conduct set forth on Exhibit A hereto as well as all applicable laws, including, without limitation, privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;
- Provide accurate information to MakeTime as requested and updated as necessary;
- Not upload, post, transmit or otherwise make available any content that (i) falsely states, impersonates or otherwise misrepresents your identity or your affiliation with any person or entity; (ii) includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships; (iii) infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights; or (iv) contains software viruses, worms, or similar computer code, files or programs.
- Not to reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the MakeTime Platform;
- Not to utilize or copy information, content or any data you view on or obtain from the MakeTime Platform to provide any service that is competitive, in MakeTime’s sole discretion, with MakeTime or the MakeTime Platform;
- Not to infringe or use, in any manner, MakeTime’s brand, logos or trademarks, including, without limitation, using the word “MakeTime” in any business name, email, URL or otherwise;
- No to use manual or automated software, devices, scripts, robots, or other means or processes to access, “scrape”, “crawl” or “spider” any web pages or other services contained in the MakeTime Platform;
- Not to engage in “framing”, “mirroring”, or otherwise simulating the appearance or function of the MakeTime Platform;
- Not to engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on the MakeTime Platform’s infrastructure;
- Not to recruit or otherwise solicit any User to join third-party services or websites that are competitive to MakeTime, without MakeTime’s prior written approval, or in an attempt to circumvent MakeTime’s involvement in the manufacture of any Subject Parts, or for any other reason.
Indemnification. You agree to indemnify, and hold MakeTime and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your use of the MakeTime Platform or Subject Parts obtained through the Platform; (b) the manufacture of the Subject Parts; (c) your breach or violation of this Agreement; (d) your User Content; or (d) your violation of the rights of any third party, including any other Users. You will cooperate as fully required by MakeTime in the defense of any claim and MakeTime reserves the right to assume the exclusive defense and control of any matters subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of MakeTime.
Suspension or Termination. We may, in our discretion, without cause or prior notice suspend, deactivate or cancel your MakeTime Account and accordingly terminate any pending or Confirmed Jobs of a User. You may terminate this Agreement, for any reason, at any time, by deleting your MakeTime Account, thereby signifying that you agree not to use the MakeTime Platform. Such termination will be effective upon MakeTime processing your notice; provided, however, you will remain obligated under any and all accepted Purchase Orders and/or Confirmed Jobs commenced prior to your termination of this Agreement.
Upon termination of this Agreement, the rights and obligations of the Users and MakeTime, which by their nature must survive termination of this Agreement in order to achieve their fundamental purposes, including, without limitation, the provisions of sections addressing legal compliance, representations and warranties, and indemnities, shall survive such termination without time limitation.
INTELLECTUAL PROPERTY MATTERS
Ownership. All text, graphics, images, software, information, copyrights, trademarks, service marks, trade dress, trade secrets, or patents, whether registered or not and whether owned directly or licensed from others (collectively, “Content”) that MakeTime makes available through the Platform (“MakeTime Content”), but excluding User Content, are protected by copyright, trademark, and other laws and all Users hereby acknowledge and agree that (i) the MakeTime Platform and all MakeTime Content, including all associated intellectual property rights, are the exclusive property of MakeTime and its licensors; and (ii) MakeTime reserves all of its intellectual property rights in the MakeTime Platform and the MakeTime Content, except as otherwise set forth herein.
Limited License. Subject to your compliance with this Agreement, MakeTime grants you a limited, non-exclusive, non-transferable license, to (i) access and view the MakeTime Platform and any MakeTime Content solely for your personal and non-commercial purposes, other than in regard to your use of the Platform; and (ii) access and view any User Content to which you are permitted access, solely for your personal and non-commercial purposes, other than in regard to your use of the Platform. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the MakeTime Platform, MakeTime Content or User Content, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by MakeTime or its licensors, except for the licenses and rights expressly granted in this Agreement.
User Content. By a User making available to MakeTime any Content through the MakeTime Platform, or otherwise, which may include, without limitation, textual, audio and/or visual content and information, commentary and feedback related to the MakeTime Platform (“User Content”), each User hereby grants to MakeTime a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, to use, view, copy, modify, transfer, publicly display and otherwise exploit such User Content in regard to the operation of the MakeTime Platform and/or the promotion or marketing thereof, without further notice to or consent from you, and without compensation to you and/or any third party.
You acknowledge and agree that you are solely responsible for all User Content that you submit to MakeTime and/or otherwise make available through the MakeTime Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you submit to MakeTime and/or otherwise make available through the MakeTime Platform or you have all rights, licenses, consents and releases that are necessary to grant to MakeTime the rights in such User Content, as contemplated under this Agreement; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or MakeTime’s or a Purchaser’s use of the User Content (or any portion thereof) on, through or by means of the MakeTime Platform will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Notwithstanding the foregoing, the Supplier does not represent or warrant that such User Content that the Supplier submits to MakeTime and/or otherwise makes available through the MakeTime Platform: (a) will not infringe or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation when specially made, in whole or in part, to the Purchaser Specifications; or (b) if used or sold in combination with other materials or apparatus, will not, as a result of such combination, infringe any such patent, and the Supplier shall not be liable to MakeTime or the Purchaser for damages or losses of any nature whatsoever resulting from actual or alleged infringement arising pursuant to (a) and (b) above.
In the context of a Confirmed Job, a Supplier, is granted by the applicable Purchaser, a limited license to use the Purchaser Specifications and User Content only for the purpose of supplying the Subject Parts and to fulfill the Supplier’s obligations under this Agreement. The Supplier shall not acquire or assert any ownership in or to any of the Purchaser’s User Content and the Supplier’s use of the Purchaser’s User Content shall inure to the sole benefit of the Purchaser.
DISCLAIMERS/LIMITATION OF LIABILITY
Disclaimer. MAKETIME PROVIDES THE PLATFORM AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW MAKETIME DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT. MAKETIME MAKES NO WARRANTY THAT THE MAKETIME PLATFORM OR ANY CONFIRMED JOBS, WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MAKETIME MAKES NO WARRANTY REGARDING THE QUALITY OF ANY QUOTES, PurchaserS, SUPPLIERS, CONFIRMED JOBS, THE SERVICES, USER CONTENT OR SUBJECT PRODUCTS OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OR MAKETIME CONTENT. MAKETIME EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY AND ALL USERS.
IF YOU ARE DISSATISFIED OR HARMED BY MAKETIME, THE MAKETIME PLATFORM OR ANYTHING RELATED TO MAKETIME OR THE MAKETIME PLATFORM, YOU MAY CLOSE YOUR MAKETIME ACCOUNT AND TERMINATE THIS AGREEMENT AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MAKETIME BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM THE USE OF OR INABILITY TO USE THE MAKETIME PLATFORM, FROM MAKETIME’S SELECTION OF A SUPPLIER, A Purchaser’S ACCEPTANCE OF A MAKETIME PURCHASE ORDER, FROM A SUPPLIER’S PERFORMANCE OF A CONFIRMED JOB OR THE MANUFACTURE OF ANY SUBJECT PARTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MAKETIME HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL MAKETIME’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND YOUR USE OF OR INABILITY TO USE THE PLATFORM AND/OR IN CONNECTION WITH ANY PURCHASE ORDER, CONFIRMED JOBS OR SUBJECT PARTS, EXCEED THE AMOUNTS YOU HAVE BEEN PAID OR BEEN, AS APPLICABLE, FOR CONFIRMED JOBS VIA THE PLATFORM IN THE THIRTY (30) DAY PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE OR RECEIVED. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAKETIME AND YOU AND YOU HEREBY ACKNOWLEDGE AND AGREE THAT MAKETIME WOULD NOT HAVE ENTERED INTO THIS AGREEMENT IF THIS PROVISION WAS NOT INCLUDED HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Copyright Infringement Claims. Claims of suspected copyright infringement should be sent to MakeTime’s designated representatives as set forth on the MakeTime Platform at [email protected].
Third Party Sites. The MakeTime Platform may contain hyperlinks relating to other websites (“Third Party Sites”). Upon your accessing such hyperlinks, you acknowledge and agree that any terms and conditions of use found within such Third Party Sites shall apply to such Third Party Sites and not this Agreement. Accordingly MakeTime makes no warranty or representation as to the content, accuracy, legality or authenticity of any content presented by any Third Party Sites from which you gain access via a hyperlink from the MakeTime Platform. Moreover, the fact that a Third Party Site can be accessed via the MakeTime Platform is in no way an endorsement of that Third Party Site by MakeTime.
Governing Law; Binding Arbitration. This Agreement or any claim, cause of action or dispute arising out of or related to this Agreement and/or your use of the MakeTime Platform shall be governed by the laws of the State of Delaware regardless of your country of origin or where you access the MakeTime Platform, and notwithstanding of any conflicts of law principles and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable.
For any dispute you have with MakeTime, you agree to first contact MakeTime and attempt to resolve the dispute with us informally. If MakeTime has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to this Agreement by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules then in effect for the AAA, except for a claim by MakeTime for infringement or misappropriation of any patent, copyright, trademark, or trade secret or a breach of the Suppliers’ obligations under the “Bonding Program” Section of the Agreement. Unless you and MakeTime agree otherwise, the arbitration will be conducted in the State of Kentucky, County of Fayette and each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
In the event the agreement to arbitrate set forth herein is held unenforceable by a court, then you and MakeTime hereby agree that all claims that would otherwise have been arbitrated will be brought exclusively in courts of the State of Kentucky, County of Fayette, or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Kentucky. Notwithstanding the above, you agree that MakeTime shall be permitted to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT YOU MAY BRING CLAIMS AGAINST MAKETIME ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Time Limitation on Claims. You agree that any claim you may have against MakeTime arising out of or related to your relationship with MakeTime must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
Modification. MakeTime reserves the right, at its sole discretion, to modify the MakeTime Platform or this Agreement, at any time and without prior notice. If we modify this Agreement, we will post the modification on the MakeTime Platform or otherwise provide you with notice of the modification. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the MakeTime Platform after we have modified this Agreement you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the MakeTime Platform. Notwithstanding the foregoing, in the event that MakeTime modifies the “Governing Law; Binding Arbitration” section set forth above after the date that you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject the acceptance of such modification by MakeTime by delivering written notice of such objection to MakeTime, 446 E. East High Street, Suite 110, Lexington, Kentucky 40507, Attn: Dispute Resolution, within thirty (30) day of the date such date became effective in accordance herewith. To be effective such notice must include your full name and your intent to reject the specific changes you are objecting to. Your rejection to such changes shall in no way alleviate your obligation to abide by the terms of the “Governing Law; Binding Arbitration” section as they existed prior to your objection to such modifications.
Code of Conduct for Suppliers
Forced Labor. There shall not be any use of forced labor, whether in the form of prison labor, indentured labor, bonded labor, or otherwise.
Child Labor. There shall not be any use of child labor in violation of any applicable laws.
Harassment or Abuse. Every employee shall be treated with respect and dignity. No employee shall be subject to any physical, sexual, psychological or verbal harassment or abuse.
Nondiscrimination. No person shall be subject to any discrimination in employment, including hiring, salary, benefits, advancement, discipline, termination or retirement, on the basis of gender, race, religion, age, disability, sexual orientation, nationality, political opinion, or social or ethnic origin
Health and Safety. Suppliers shall provide a safe and healthy working environment to prevent accidents and injury to health arising out of, linked with, or occurring in the course of work or as a result of the operation of Supplier facilities.
Wages and Benefits. Suppliers recognize that wages are essential to meeting employees’ basic needs. Suppliers shall pay employees, as a floor, at least the minimum wage required by local law or the prevailing industry wage, whichever is higher, and shall provide legally mandated benefits.
Hours of Work. Except in extraordinary business circumstances, employees shall (i) not be required to work more than the lesser of (a) 48 hours per week and 12 hours overtime; or (b) the limits on regular and overtime hours allowed by the law of the country of manufacture or, where the laws of such country do not limit the hours of work, the regular work week in such country plus 12 hours overtime; and (ii) be entitled to at least one day off in every 7 day period.
Overtime Compensation. In addition to their compensation for regular hours of work, employees shall be compensated for overtime hours at such premium rate as is legally required in the country of manufacture or, in those countries where such laws do not exist, at a rate at least equal to their regular hourly compensation rate.
Protection of the Environment. Suppliers will comply with all applicable environmental laws and regulations.