Last Updated: March 10, 2017
If you accept and agree to be bound by this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event “you” and “your” will refer and apply to that company or other legal entity. If you do not agree to this Agreement, you have no right to obtain information from or otherwise continue using the MakeTime Platform and must cease your use of the MakeTime Platform immediately.
1. 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 BY OFFERING THE MAKETIME PLATFORM TO YOU, MAKETIME DOES NOT PROVIDE OR CLAIM TO PROVIDE ANY MANUFACTURING OR ENGINEERING SERVICES, ADVICE OR OPINION OR FUNCTION OR CLAIM TO FUNCTION AS A MANUFACTURER, ENGINEER OR TECHNICAL ADVISOR IN ANY CAPACITY. THE MAKETIME PLATFORM IS NOT A SUBSTITUTE FOR OBTAINING PROFESSIONAL MANUFACTURING OR ENGINEERING ADVICE REGARDING THE VIABILITY OR FUNCTIONALITY OF THE APPLICABLE SUBJECT PARTS.
- Opening a MakeTime Account. In order to register as a Purchaser or a Supplier on the MakeTime 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.
- Information Required To Open a MakeTime Account. 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 will require. An “Authorized User” is an employee of a Purchaser or Supplier who has registered online for a MakeTime Account to access and use the MakeTime Platform. 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 and your Authorized Users’ user name and password; (ii) you will keep your and your Authorized Users’ user name and password confidential and not share it with anyone else; (iii) you will immediately notify MakeTime of any unauthorized use of your or your Authorized Users’ 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 or your Authorized Users’ user name and password by you, your Authorized Users or someone else with or without your authorization. Users will not allow access to or use of the MakeTime Platform by anyone other than Authorized Users. Users, and not MakeTime, will be responsible for all their Authorized Users’ activities on the MakeTime Platform.
- Payment Information. Users will also be required to provide to MakeTime and its third-party payment processors certain banking information to enable MakeTime to remit or collect 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 Production Fees (as hereinafter defined) at such times and amounts specified on the MakeTime Platform by charging and/or deducting such Production Fees in accordance with the Purchaser’s applicable Payment Information provided to MakeTime.
- Supplier Information. In addition to the foregoing, in order to register as a Supplier on the MakeTime 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 (“Supplier Information”). MakeTime may also require you to update your Supplier Information from time to time. You hereby further agree to provide MakeTime with project information including, but not limited to, project updates, participate in post-production surveys and any additional information MakeTime deems appropriate to facilitate future job placements as determined in MakeTime’s sole discretion.
- Access to Your Information. By registering for a MakeTime Account, you acknowledge and agree that MakeTime is permitted to access, preserve, and disclose your account information or Purchaser Content or Supplier Content (as applicable and 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 will 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.
2. PROJECT SUBMISSION, BOOKING AND FULFILLMENT
- Submitting a Request for an Estimate. Once a Purchaser has created a MakeTime Account, such Purchaser will upload models or drawings for parts that Purchaser would like to have manufactured (the “Subject Parts Library”). Purchaser will then be able to submit to MakeTime a project request for subject parts based on parts in the Subject Parts Library (“Subject Parts”). In connection with such project request, 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, e.g., steel, aluminum, wood, etc. (“Materials”), date range by which the Subject Parts must be received (“In-hand Date Range”), 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 and approval of the Purchaser Specifications, MakeTime will compile an estimate for the Purchaser for the overall costs that will be involved with the completion of such proposed job based, without limitation, on the Purchaser Specifications and on historical market rates charged by Suppliers for similar parts (“Estimate”). The Users hereby agree that MakeTime is free to reject a request for an Estimate made by Purchaser for any reason (including, by way of example, based on Purchaser’s inability to satisfy MakeTime’s credit checks) and acknowledge that only requests for Estimates that meet the capabilities of the Supplier base (including available Machine Time (as defined below)) and are accompanied by all required information to complete the manufacture of the Subject Parts will be accepted and processed by MakeTime.
- Changes to Estimates. All Purchasers agree that the In-hand Date Range included in the Purchaser Specifications and the overall market conditions at the time of the remittance of the request for an estimate may affect MakeTime’s pricing. Therefore, a Purchaser’s request for an Estimate for the same Subject Parts at a later date may yield a different overall cost based upon these variables and others. Until a Purchaser accepts an Estimate, MakeTime reserves the right to change an Estimate at any time to reflect changes in economic and market conditions (e.g., changes in price of materials), as well as any discounts. In addition, 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.
- Financial Obligation. Upon acceptance of an Estimate by Purchaser, (the “Accepted Estimate”), the Purchaser will be obligated to MakeTime for 100% of the costs, fees and expenses set forth in the Accepted Estimate (“Production Fees”), which will be non-refundable unless otherwise provided herein or on the MakeTime Platform. Unless otherwise agreed by MakeTime, or unless Purchaser rejects the Subject Parts pursuant to Section 3 below, MakeTime will remit the fees owed to Supplier as set forth in the Confirmed Job (as defined below) (such fees, the “Supplier Fees”) upon the earlier of: (i) MakeTime’s receipt of Purchaser’s written acceptance of the Subject Parts; or (ii) eight (8) calendar days from the date of delivery of the Subject Parts by a third-party carrier to Purchaser’s site.
- Supplier Matching. Upon receipt of an Accepted Estimate, MakeTime will review possible matches for the proposed job with capable Suppliers based on an analysis of the Subject Parts, Suppliers’ matchmaking rankings as determined and applied by MakeTime, associated processes, available time on a Supplier machine or equipment that can be used for production (the “Machine Time”), and Purchaser Specifications. MakeTime will then send relevant Suppliers an offer that includes the Subject Parts, the Machine Time and the expected pick-up date by MakeTime (the “Job Offer”). Once Supplier accepts a Job Offer, it will become a confirmed Job Offer (the “Confirmed Job”). Supplier agrees that if MakeTime purchases Machine Time from Supplier in a Confirmed Job, Supplier will allocate such Machine Time exclusively to Confirmed Jobs. Further, Supplier acknowledges and agrees that MakeTime may purchase Machine Time from Supplier in advance of a Confirmed Job. In the case of such purchase, Supplier must reserve the Machine Time such that the applicable Supplier’s machines be reserved and used only for MakeTime projects. For the avoidance of doubt, each of Supplier and Purchaser understands and agrees that MakeTime only matches a Supplier with a Purchaser to enable the manufacture and delivery of the Subject Parts, and that MakeTime does not manufacture or deliver the Subject Parts.
- Change Order Policy. If a Purchaser makes a written request for changes to a Confirmed Job, such requests will be handled as follows: MakeTime and Supplier will review the request, assess the availability of Supplier’s machines and staff, cost of any changes and any impact the changes will have on In-hand Date Ranges or other obligations under this Agreement. If MakeTime and Supplier agree to the request for changes, a written change order reflecting such changes will be signed by all parties and attached as an exhibit to this Agreement.
- Materials. Upon securing a Confirmed Job with a Supplier, MakeTime will arrange for the acquisition and delivery of the Materials to the Supplier and will manage all communications between the Purchaser and Supplier throughout the process. Risk of loss or damage to Materials will pass to the Supplier upon the delivery of the Materials to the Supplier’s facility and Supplier acknowledges and agrees that if the Materials are damaged or lost after delivery or if Supplier needs additional Materials to complete the Confirmed Job, MakeTime may, at its sole discretion, acquire replacement Materials at Supplier’s cost and expense, unless otherwise specified by MakeTime or under the terms of a Confirmed Job. MakeTime will deduct the cost of such additional or replacement Materials prior to paying the Supplier Fees to Supplier.
- Communications. 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 an Estimate and Confirmed Job, prior to the delivery of a Subject Part or at any time during the period of this Agreement, even if Supplier is not retained by Purchaser for a Job Offer, 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 new and manufactured on the equipment that has been reserved by MakeTime and referenced in the underlying Accepted Estimate, unless otherwise agreed to in writing by MakeTime; (iii) all Materials and logistics that are provided and arranged by MakeTime will be used exclusively for the manufacture of the Subject Parts, unless otherwise agreed to in writing by MakeTime; (iv) all Subject Parts will be manufactured in compliance with the Purchaser Specifications; (v) the Subject Parts are and will be safe for normal use, and unless otherwise specified by Purchaser, are and will be non-toxic, present no abnormal hazards to persons or their environment; (vi) the Subject Parts, and their use by Customer, will not infringe, misappropriate or violate the intellectual property rights of any third party; (vii) Supplier will maintain insurance covering the manufacture of the Subject Parts; (viii) all Subject Parts will comply with all applicable laws; (ix) upon request from MakeTime, Supplier will correct any Timely Completion Defaults, Purchaser Specifications Defaults or Product Defaults pursuant to Sections 3.2 and 4 below; and (x) Supplier will comply with all applicable laws in the performance of its obligations under this Agreement and all applicable Confirmed Jobs, including without limitation, environmental laws and regulations, the Fair Labor and Standards Act, and those laws and regulations pertaining to child labor, “sweatshops,” and exploitation of employees. All warranties, whether express or implied, relating to the Subject Parts will 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 and will comply with all reasonable requests related to such, including on-site inspections of Supplier’s 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. Supplier will ensure that the Subject Parts are packaged in accordance with good commercial practice, in a manner that is acceptable to common carriers for shipment and adequate to ensure safe arrival of the Subject Parts at the delivery location designated by Purchaser and in accordance with any other MakeTime’s instructions communicated to Supplier. Supplier acknowledges and agrees: (i) that it will not ship or send with the Subject Parts any advertising or promotional materials or other forms of solicitation or packaging of any kind; and (ii) that it will comply with any instructions given by MakeTime regarding the promotion, branding or packaging of the Subject Parts. 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 will title to the Subject Parts pass to MakeTime. MakeTime is only acting as an agent to assist Purchaser and Supplier in the delivery of the Subject Parts and does not claim any ownership or title to the Subject Parts. Unless expressly agreed otherwise in writing by MakeTime, at no point will title or risk of loss to the Subject Parts pass to MakeTime. Purchaser or Supplier, as applicable, will report all missing or damaged shipments or Subject Parts within seven (7) calendar days of delivery to the Purchaser pursuant to the procedures set forth in Section 3 below.
3. PURCHASER REJECTION
Purchaser Rejection Mechanism. In the event that a Purchaser determines that (i) a Supplier has failed to timely complete a Confirmed Job in accordance with the agreed upon terms, except if such default is due to a Force Majeure Event (“Timely Completion Default”); (ii) a Subject Part fails to conform with the applicable Purchaser Specifications (“Purchaser Specifications Default”); or (iii) a Subject Part is of unacceptable quality or defective (“Product Default”), within seven (7) calendar days of the delivery of such Subject Part by a third-party carrier to the Purchaser’s site or delivery of the final Subject Parts, such Purchaser will be required to submit a written claim evidencing such Timely Completion Default, Purchaser Specifications Default or Product Default, as applicable (“Rejection Claim”), to MakeTime via (a) email (with confirmation of receipt) to email@example.com; or (b) registered or certified mail to MakeTime Inc., 446 East High Street, #110, Lexington, Kentucky 40507, Attn: Doug Campbell. For Purchaser Specifications Defaults or Product Defaults, the Rejection Claim should include visual evidence of the default (e.g., a picture of the defective Subject Part). Purchaser’s failure to file a Rejection Claim within the required seven (7) day period will be deemed as Purchaser’s acceptance of the Subject Parts.
Corrective Action. MakeTime will make commercially reasonable efforts to cause the applicable Supplier to correct any confirmed Timely Completion Default, Purchaser Specifications Defaults and/or Product Defaults. If MakeTime or the applicable Supplier are able to correct the applicable Timely Completion Defaults, Purchaser Specifications Defaults and/or Product Defaults within a reasonable period of time after receipt of the Rejection Claim and the Subject Parts are delivered to Purchaser, the Rejection Claim will be deemed closed, and Supplier will be subject to the obligations set forth in Section 4.1 below. If the applicable Timely Completion Defaults, Purchaser Specification Defaults and/or Product Defaults cannot be or are not corrected within such window, the Rejection Claim will be reviewed by either MakeTime or, for Confirmed Jobs with a value greater than $10,000 (the “Surety Bond”), by a reputable surety company (a “Participating Surety”) pursuant to the process in Section 3.3 below.
Review Process. All Rejection Claims not closed as provided above in Section 3.2 will be addressed by either MakeTime or the Participating Surety, as applicable (each, a “Reviewer”) within a reasonable amount of time. If after receipt and review of the Rejection Claim, the Reviewer determines that the Supplier is in default, and the default cannot be remedied in accordance with the Supplier’s obligations in Section 4 below, the Reviewer will notify Purchaser of such determination and either, at the Purchaser’s discretion, (i) engage a new Supplier to complete the Subject Job; or (ii) refund the Production Fees for such Subject Job to the applicable Purchaser. In the alternative, if after receipt and review of the Rejection Claim, the Reviewer determines that the Supplier is not in default, MakeTime, will release the Supplier Fees to Supplier and the Subject Job at issue will be deemed complete. Pending the resolution of a Rejection Claim, a Supplier may be suspended from undertaking any further jobs on the MakeTime Platform until such Rejection Claim has been resolved and may have any Confirmed Jobs currently in process reassigned by MakeTime, in its sole discretion, to other Suppliers.
4. SUPPLIER OBLIGATIONS IN CASE OF SUBJECT PART DEFAULT
- Purchaser Specifications Defaults or Product Defaults. If a Purchaser reports a Purchaser Specification Default or a Product Default pursuant to Section 3 above and MakeTime agrees with such reported default, Supplier will be responsible for the following:
- Minor Default. If the Purchaser Specification Default or Product Default is minor such that, at MakeTime’s request, Purchaser agrees to accept the Subject Part “as is” without any additional work by either MakeTime or Supplier, Supplier will not be responsible for any additional costs. However, MakeTime will keep an internal record of the applicable default on Supplier’s profile, which may affect Supplier’s matchmaking ranking.
- Default Requiring Corrective Work. If there is a Purchaser Specifications Default or Product Default and MakeTime determines that such default can be corrected by Supplier’s performance of additional work or repairs (the “Corrective Work”), Supplier agrees that: (a) it will perform the Corrective Work at its own expense according to a schedule mutually determined by Supplier and MakeTime; (b) it will be responsible for (i) the logistics and shipping costs (including any costs of expedited shipping) incurred by MakeTime to ship the corrected Subject Parts to Purchaser and (ii) the foreseeable and reasonable costs related to the defective Subject Parts that are incurred by Purchaser as a result of the Purchaser Specifications Default or Product Default; and (c) MakeTime will keep an internal record of the applicable default on Supplier’s profile, which may affect Supplier’s matchmaking ranking. Supplier will report and provide to MakeTime supporting evidence of all the foregoing corrective costs. MakeTime will then deduct all such corrective costs from the Supplier Fees when Purchaser accepts delivery of the corrected Subject Parts.
- Default Requiring Replacement. If there is a Purchaser Specification Default or Product Default that cannot be corrected pursuant to Section 4.1(b) above and that requires replacement of the defective Subject Part(s) as determined by MakeTime, Supplier agrees that: (a) it will replace the defective Subject Part(s) at Supplier’s expense; (b) it will be responsible for (i) all replacement costs incurred by Supplier or MakeTime, including, without limitation, manufacturing, logistics, and shipping (including any costs of expedited shipping) costs to manufacture and ship the replacement Subject Parts to Purchaser and (ii) all foreseeable and reasonable costs (e.g., sorting fees, etc.) related to the defective Subject Parts that are incurred by Purchaser as a result of the Purchaser Specification Default or Product Default; and (c) MakeTime will keep an internal record of the applicable default on Supplier’s profile, which may affect Supplier’s matchmaking ranking. Supplier will report and provide to MakeTime supporting evidence of all the foregoing replacement costs. MakeTime will then deduct all such replacement costs from the Supplier Fees when Purchaser accepts delivery of the replacement Subject Parts.
- Timely Completion Defaults. If MakeTime becomes aware of a late pick-up date or late delivery date or if a Purchaser reports a Timely Completion Default pursuant to Section 3.1 above and MakeTime agrees with such reported default, Supplier will be responsible for the following:
- Delayed Pick-Up Date but On-Time Delivery. If the Supplier misses the pick-up delivery date specified in the Confirmed Job, but MakeTime can still meet the In-hand Date Range by upgrading the shipping method, Supplier will be responsible for the costs of upgrading shipping and other shipping costs incurred by MakeTime to meet the In-hand Date Range. MakeTime will deduct such costs from the Supplier Fees when the Subject Parts are accepted by Purchaser. In addition, MakeTime will keep an internal record of this default on Supplier’s profile, which may affect Supplier’s matchmaking ranking.
- Delayed Pick-Up Date and Late Delivery. If the Supplier misses the pick-up delivery date by MakeTime specified in the Confirmed Job, and as a result MakeTime misses the In-hand Date Range, Supplier will be responsible for (i) additional charges equal to 10% of the Supplier Fees; and (ii) any costs of upgraded shipping or other logistics costs incurred by MakeTime to complete the delivery. MakeTime will deduct such costs from the Supplier Fees when Purchaser accepts the Subject Parts. In addition, MakeTime will keep an internal record of this default on Supplier’s profile, which may affect Supplier’s matchmaking ranking.
- Mitigating Factors. Supplier will not be responsible for a Timely Completion Default that results in late delivery to the Purchaser if MakeTime determines that such delay is the direct result of any of the following events: (i) the Materials necessary to make the Subject Parts are delivered late to Supplier (due to a supplier or other logistics issue); (ii) Supplier needs additional information from Purchaser or from its engineering department before starting production of the Subject Parts; (iii) Supplier ships the Subject Parts on time but their arrival to Purchaser is delayed due to reasons outside of Supplier’s control; (iv) delays due to customs issues (i.e., the Subject Parts are made outside of the U.S. but are delivered in the U.S.); (v) Purchaser or MakeTime requests engineering changes in the middle of a production run; (vi) Supplier must prioritize other “rush” MakeTime Confirmed Jobs at MakeTime’s request. (vii) Purchaser is not available to receive the Subject Parts on time; (viii) Supplier ships the Subject Parts on time but they are lost in transit; (ix) Supplier cannot deliver the Subject Parts due to an incorrect Purchaser address provided by MakeTime or Purchaser.
5. USER CONDUCT
1. Rules of Use. As a condition to accessing the MakeTime Platform, each User and its Authorized Users agree to abide by the terms and conditions of this Agreement and to strictly observe the following:
- Provide accurate information to MakeTime as requested and update such information as may be 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;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other forms of solicitation;
- 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 for any commercial purpose or 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; and
- 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.
- By Purchaser. If you are a Purchaser, you agree to indemnify, defend 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 or your Authorized Users’ use of the MakeTime Platform or Subject Parts obtained through the MakeTime Platform that allegedly or actually results in personal injury, death or tangible or real property damage or loss of use therefrom, including, without limitation, any claim that alleges a defect in the design, manufacturing, testing or manufacture of a Subject Part, regardless of the legal or statutory bases of the claim; (b) your or your Authorized Users’ breach or violation of this Agreement; (c) your Purchaser Content (defined below); or (d) your or your Authorized Users’ violation of the rights of any third party, including any other Users. MakeTime will promptly notify you of such claim although failure to provide such notice will not relieve you as the indemnifying party from your obligations hereunder except to the extent of any material prejudice resulting therefrom. 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.
- By Supplier. If you are a Supplier, you agree to indemnify, defend 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 manufacture of the Subject Parts in violation of the terms of this Agreement; (b) your breach or violation of this Agreement; (c) your Supplier Content (defined below); or (d) your violation of the rights of any third party, including any other Users. MakeTime will promptly notify you of such claim although failure to provide such notice will not relieve you as the indemnifying party from your obligations hereunder except to the extent of any material prejudice resulting therefrom. 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.
7. SUSPENSION OR TERMINATION
- Termination by MakeTime. We may, in our discretion, terminate this Agreement or, without any advance notice of any kind, suspend, deactivate or cancel your MakeTime Account and accordingly terminate any pending or Confirmed Jobs of a User. MakeTime also reserves the right to terminate an Accepted Estimate in the event that MakeTime is unable to match a Supplier with a Purchaser pursuant to Section 2.4. In such case, MakeTime will refund Purchaser any prepaid Production Fees (if applicable). MakeTime will use commercially reasonable efforts to explore all available options to place the Accepted Estimate with a Supplier before resorting to such termination.
- Termination by Users. 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 Estimates and/or Confirmed Jobs commenced prior to your termination of this Agreement.
- Survival. Sections 2.8, 6, 7, 9, 10, 11 and 12 will survive termination of this Agreement.
- Cancellation by Purchaser. Purchaser may not cancel an Accepted Estimate once there is a Confirmed Job without MakeTime’s prior written consent. In case of such cancellation, Purchaser will forfeit 100% of the Production Fees. Of these Production Fees, the Supplier will be entitled to receive payment in an amount equal to the Supplier’s actual costs with respect to the Confirmed Job incurred prior to the cancellation of such Confirmed Job, which will be documented and reasonably acceptable to MakeTime (“Supplier Costs”).
- Cancellation by Purchaser due to Supplier Default. If a Purchaser cancels a Confirmed Job due to a Timely Completion Default, Purchaser Specifications Default or Product Default, Supplier agrees that it pay for all reasonable costs incurred by MakeTime due to such cancellation. Payment for all such costs will be due to MakeTime thirty (30) days from Supplier’s receipt of invoice and will be payable in U.S. dollars.
- Cancellation by Supplier. Except as otherwise provided in this Agreement, Supplier will not cancel any Confirmed Jobs. In addition to any other remedies available to MakeTime (whether under applicable law or as otherwise set forth in this Agreement), including, but not limited to, the Supplier’s obligations in Section 4, in the event of a default on the part of a Supplier of its obligations in this Agreement (including, an unauthorized cancellation of a Confirmed Job, Supplier agrees to and will pay to MakeTime, at MakeTime’s sole discretion, a cancellation fee, and not a penalty, not to exceed the Supplier Fees related to the applicable Confirmed Job. In addition, if a Supplier cancels a Confirmed Job, Supplier acknowledges and agrees that MakeTime will not pay any Supplier Fees to Supplier and that Supplier will reimburse MakeTime for all costs and expenses incurred by MakeTime in connection with finding a substitute Supplier to perform the Confirmed Job. Payment for all such costs and expenses will be due to MakeTime thirty (30) days from Supplier’s receipt of invoice and will be payable in U.S. dollars. MakeTime may, at its sole discretion, also keep an internal record of Supplier’s cancellations or defaults, which may affect Supplier’s matchmaking ranking. A Supplier’s matchmaking ranking is not visible to Purchasers. In case of cancellation of a Confirmed Job by a Supplier or a Purchaser, Supplier agrees, upon request from MakeTime, to return any remaining Materials to MakeTime, at MakeTime’s cost and expense.
9. INTELLECTUAL PROPERTY MATTERS
- Ownership. All text, graphics, images, software, information, works of authorship of any kind or other materials (collectively, “Content”) that MakeTime makes available through the MakeTime Platform (“MakeTime Content”), but excluding Purchaser Content (defined below) and Supplier Content (defined below) (individually and/or collectively with Purchaser Content, “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 therein, are the exclusive property of MakeTime and its licensors; and (ii) except as otherwise set forth herein, MakeTime reserves all of its intellectual property rights in the MakeTime Platform and the MakeTime Content, including, but not limited to, all the collective ideas, know-how, inventions or methods developed by MakeTime as a result of providing the MakeTime Platform to you. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the MakeTime Platform or MakeTime Content.
- Limited License to MakeTime Content. Subject to your compliance with this Agreement, MakeTime grants you and your Authorized Users a limited, non-exclusive, non-transferable license, to (i) access and view the MakeTime Content solely in connection with your permitted use of the MakeTime Platform and solely; and (ii) access and view any User Content to which you are permitted access, solely in connection with your permitted use of the MakeTime Platform. You have no right to sublicense the license rights granted in this Section.
- Restrictions. 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.
- Rights in Purchaser Content.
- License Grant to MakeTime. By using the MakeTime Platform, Purchaser grants MakeTime a non-exclusive, sublicenseable, and royalty-free license, to use the Purchaser Specifications, the Subject Parts Library and any designs, procedures and information related thereto (collectively, the “Purchaser Content”) for MakeTime to operate the MakeTime Platform to provide services to the Purchaser and improve the MakeTime Platform. MakeTime does not claim any ownership in any Purchaser Content and nothing in this Agreement will be deemed to restrict any rights Purchaser may have to use and exploit its Purchaser Content. Notwithstanding the foregoing, MakeTime will have the right to use the data of Purchasers and Suppliers on an aggregate, anonymized basis, which does not identify and cannot be related to Purchasers or Suppliers (the “Aggregated Anonymous Data”), during or after the term of this Agreement to develop and improve the MakeTime Platform. MakeTime will not distribute the Aggregated Data in a manner that personally identifies Purchasers or Suppliers.
- Warranty. You acknowledge and agree that you are solely responsible for all Purchaser 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 Purchaser 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 Purchaser Content, as contemplated under this Agreement; and (ii) neither the Purchaser Content nor your posting, uploading, publication, submission or transmittal of the Purchaser Content or MakeTime’s or a Purchaser’s use of the Purchaser 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.
- License Grant to Supplier. In the context of a Confirmed Job, a Supplier is granted by the applicable Purchaser, a limited license to use the Purchaser Specifications and Purchaser Content only for the purpose of supplying the Subject Parts and to fulfill the Supplier’s obligations under this Agreement. The Supplier will not acquire or assert any ownership in or to any of the Purchaser Content and the Supplier’s use of the Purchaser Content will inure to the sole benefit of the Purchaser.
- Rights in Supplier Content.
- Grant to MakeTime. By a Supplier making available to MakeTime any Content through the MakeTime Platform, which may include, without limitation, Supplier Information, textual, audio and/or visual content and information, commentary and feedback related to the MakeTime Platform (“Supplier Content”), each Supplier hereby grants to MakeTime a worldwide, irrevocable, perpetual, non-exclusive, transferable, sublicenseable, royalty-free license, to use, view, copy, modify, transfer, distribute, publicly display and otherwise exploit such Supplier Content in connection with 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. MakeTime does not claim any ownership in any Supplier Content and nothing in this Agreement will be deemed to restrict any rights you may have to use and exploit your Supplier Content.
- Warranty. You acknowledge and agree that you are solely responsible for all Supplier 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 Supplier 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 Supplier Content, as contemplated under this Agreement; and (ii) neither the Supplier Content nor your posting, uploading, publication, submission or transmittal of the Supplier Content or MakeTime’s or a Supplier’s use of the Supplier 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.
10. DISCLAIMER/LIMITATION OF LIABILITY
- Disclaimer. MAKETIME PROVIDES THE MAKETIME PLATFORM TO PURCHASERS AND SUPPLIERS ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MAKETIME DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS TO PURCHASERS OR SUPPLIERS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MAKETIME MAKES NO WARRANTY THAT THE MAKETIME PLATFORM OR ANY CONFIRMED JOBS, WILL MEET A PURCHASER’S REQUIREMENTS OR BE AVAILABLE TO PURCHASERS AND SUPPLIERS ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MAKETIME MAKES NO WARRANTY REGARDING THE QUALITY OF ANY ESTIMATES, PURCHASERS, SUPPLIERS, CONFIRMED JOBS, USER CONTENT OR SUBJECT PARTS OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OR MAKETIME CONTENT. MAKETIME’S ROLE IS LIMITED TO MATCHING PURCHASERS AND SUPPLIERS TO ENABLE THE MANUFACTURE OF SUBJECT PARTS AND MAKETIME EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY AND ALL PURCHASERS OR SUPPLIERS.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MAKETIME BE LIABLE FOR ANY 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 ACCEPTED ESTIMATE, 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.
- MakeTime Maximum Liability. 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 MAKETIME PLATFORM, EITHER AS A PURCHASER OR AS A SUPPLIER, AND/OR IN CONNECTION WITH ANY ACCEPTED ESTIMATE, CONFIRMED JOBS OR SUBJECT PARTS, EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE TO MAKETIME UNDER THIS AGREEMENT, FOR CONFIRMED JOBS VIA THE MAKETIME 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 ARE PAYABLE. 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.
- Definition. “Confidential Information” means: (a) all information related to the MakeTime Platform, documentation, drawings, designs and other specifications; (b) any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; and (c) any information that, due to its nature or under the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
- Exclusions. The obligations in Section 11.3 below will not apply to the extent that any Confidential Information: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) was rightfully in the receiving party’s possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving Party without use of the disclosing party’s Confidential Information; or (d) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure.
- Obligations. Each party will not use the other party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of its employees that need to know such Confidential Information for the performance of this Agreement, provided that each such employee is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. For the avoidance of doubt, the Subject Parts Library and the Purchaser Specifications and any other Purchaser Content that is either (i) marked or identified as “confidential” or “proprietary” or (ii) due to its nature or the circumstances of its disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary, will be treated as Purchaser’s Confidential Information and Supplier hereby agrees to protect and to only use and disclose such Confidential Information pursuant to the limitations set forth in this Section 11. Each party will use all reasonable efforts to maintain the confidentiality of the other party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance, which efforts shall be no less than a reasonable degree of care. The foregoing obligations will not restrict either Party from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that, to the extent permitted, the party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement; (b) on a confidential basis to its legal or professional financial advisors; (c) as required under applicable securities regulations; or (d) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party. The Aggregated Anonymous Data will not be deemed Confidential Information under this Agreement.
- Copyright Infringement Claims. MakeTime respects copyright law and expects its Users to do the same. It is MakeTime’s policy to terminate in appropriate circumstances MakeTime Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Claims of suspected copyright infringement should be sent to MakeTime’s designated representative as set forth in MakeTime’s Intellectual Property Notification Policy available at https://www.maketime.io/intellectual-property-notification-policy/.
- 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 will 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. 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 will be governed by the laws of the State of Kentucky 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. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the State of Kentucky, County of Fayette, or, if applicable, in the United States District Court for the Eastern District of Kentucky and the parties irrevocably consent to the personal jurisdiction and venue therein.
- Force Majeure. Neither Supplier nor MakeTime will be responsible or liable to each other for any failure or delay in such party’s performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortage of or inability to obtain energy, raw materials or supplies, war, terrorism, riot or acts of God (each a “Force Majeure Event”). In the event of a Force Majeure Event, the party who is unable to perform or whose performance is delayed will promptly notify the other party of the Force Majeure Event and will use its best efforts to resume performance. Performance will be excused for a period of time equal to the duration of such Force Majeure Event, but in no event longer than sixty (60) days. To the extent that the Supplier does not resume performance as a result of a Force Majeure Event in accordance with this Section 12.5, in addition to any other remedies that MakeTime is entitled to under this Agreement or applicable law, MakeTime may transfer and assign the Confirmed Job to another supplier of MakeTime’s choosing.
- 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.
- Marketing Support. You acknowledge and agree that MakeTime may disclose and list you as a supplier or customer of the MakeTime Platform, in connection with MakeTime’s advertising, distribution of marketing materials, publicity and promotion of the MakeTime Platform, provided that MakeTime will not use your logo or brand in such advertising, distribution, publicity or promotion without your prior written consent. No party will issue a press release regarding the existence of this Agreement without the other parties’ prior written approval and consent.
- 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 and 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.
- Independent Contractors. The relationship between the parties will be that of independent contractors and nothing in this Agreement is intended to nor will establish any relationship of partnership, joint venture, employment, franchise, agency or other form of legal association between the parties. Neither MakeTime, nor Purchasers or Suppliers, will have, or represent to any third party that they do have, any power or authority to bind the other parties or incur any obligations on the other parties’ behalf.
- No Waiver / Joint Partnership. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by this Agreement, no representations, statements, consents, waivers or other acts or omissions by MakeTime will be deemed legally binding unless documented in a physical writing hand signed by a duly appointed officer of MakeTime. No joint venture, partnership, employment of agency relationship exists between you and MakeTime as a result of this Agreement or use of the MakeTime Platform.
- Assignment. You may not assign or delegate any rights or obligations under this Agreement. Any purported assignment and delegation will be ineffective. We may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you.
- Severability. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect.
- Form of Signature. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures.