Last updated February 1, 2015
These Terms of Service (“Terms” or “Terms of Service”) set out the terms on which Maiaki, Inc. (“Maiaki,” “we,” “us,” or “our”) offers you (“you,” or “your”) access to and use of the online platform available at http://www.maiaki.com and all related services (collectively, “Service”) through which Sellers (as defined below) may offer Products (as defined below) for purchase by Buyers (as defined below). If you are accessing or using the Service on behalf of a company, organization or other entity, then (i) “you” or “your”) includes you and such entity, and (ii) you represent that you are authorized to enter into these Terms and grant all permissions and licenses provided in these Terms on such entity’s behalf.
By clicking to agree to these Terms, accessing or using the Service, offering Products for sale or purchasing Products, utilizing the Sample Agreement, or receiving any related services from us, you engage in our Service and agree to be bound by these Terms, including those additional terms and conditions and policies referenced or hyperlinked in these Terms. These Terms of Service apply to all Users. Please read these Terms of Service carefully before accessing or using any part of the Service. By accessing or using any part of the Service, you agree to be bound by these Terms of Service. Any new features or tools which are added to the Service shall also be subject to the Terms of Service.
Please be advised that these Terms contain provisions that govern how claims you and we have against each other are resolved. See Sections 14 (Disclaimer of Warranties), 15 (Limitations of Liability), 16 (Remedies) and 21 (Dispute Resolution, Arbitration and Class Action Waiver).
- Key Terms
“Account” means a User account for access to the Service.
“Buyer” means registered business entity that purchases any Product via the Service.
“Description” means, collectively, the photo(s) and text description(s) of an applicable Product provided or made available by Seller via the Service.
“Fees” means the fees payable by a Buyer in connection with such Buyer’s use of the Service, including the Maiaki Fees, Purchase Fees and Subscription Fees, and all applicable taxes and duties.
“Maiaki Fees” means the Fees payable by Buyer to Maiaki in connection with any Order, as set forth in Section 7 (Additional Terms for Buyers).
“Policies” means all guidelines, terms and agreements applicable made available on or in connection with the Service.
“Purchase Agreement” means the written agreement by and between a Seller and a Buyer relating to a specific Order.
“Purchase Fees” means the Fees payable by a Buyer in connection with any Order, including but not limited to the price of the Products as set forth on the Service, the Maiaki Fees, shipping and handling fees, and all applicable taxes and duties.
“Sample Agreement” means the sample Purchase Agreement provided or made available by Maiaki via the Service (Welcoming email).
“Seller” means a registered business entity that offers any Product for sale via the Service.
“Service Content” means all information, data, photographs, images, content and other materials made available on or in connection with the Service, including but not limited to the Sample Agreement.
“Shipping Conditions” means the named shipment location and conditions defined and agreed upon by a Seller and Buyer in connection with an Order.
“Subscription Fees” means the annual (12 months) subscription fees payable by Buyer to Maiaki.
“Order” means an order placed by a Buyer for a certain quantity of a specific Product from Seller, in accordance with the Product price and description provided or made available by Seller on the Service.
“User” means all who access and/or use the Service or any part thereof, including but not limited to you, Sellers, Buyers and browsers.
“User Content” means all information, data, photographs, images, content and other materials made available or provided by any User on or in connection with the Service, including but not limited to Descriptions.
- About the Service
Description. The Service offers a web-based marketplace that allows Sellers to offer and sell Products to Buyers. Subject to these Terms, we grant to you a nonexclusive, nontransferable, limited right during the term of these Terms to access and use the Service and the Service Content in accordance with these Terms.
Not Legal Advice. You acknowledge and agree that no part of the Service or Service Content, including but not limited to the Sample Agreement, constitutes legal advice. You acknowledge and agree that you should consult a licensed attorney in your area before entering into any Purchase Agreement or other agreement.
No Guarantees. While we may provide pricing, shipping, listing and other guidance in the Service, such guidance is solely informational and you may decide to follow it or not. Also, Maiaki has no control over and does not guarantee the existence, quality, safety or legality of Products; the truth or accuracy of Users’ content or Product listings or descriptions; the ability of Sellers to sell Products; the ability of Buyers to pay for Products; or that a Seller or Buyer will actually complete an Order or return Products. We make no warranties about the Service or any Service Content (including but not limited to the Sample Agreement) and do not guarantee that the Service or any Service Content will be correct, complete or up-to-date.
Modification or Discontinuance. We may modify or discontinue the Service at any time. Any new services or features that we introduce to the Service shall also be subject to these Terms.
- Eligibility Age; Pre-approval and Refusal. The Service is not intended for those under 18 years of age. If you are under 18 years of age, you may not access or use the Service. We reserve the right to preapprove any User of the Service, including any Buyer or Seller. We may, in our sole discretion, refuse access or use of the Service to any person or entity and/or change the eligibility criteria for the Service at any time. This provision is void where prohibited by law and your right to access and use the Service is revoked in those jurisdictions.
Buyers and Sellers. Any Buyer or Seller must be registered as a business entity in accordance with the applicable laws of the jurisdiction in which such Buyer or Seller is located. Maiaki does not permit any party (including but not limited to brokers) other than the direct seller of Product(s) to access or use the Service as Sellers.
Account. If you are eligible to use the Service, you should follow registration button on the homepage and create your Account. You must choose login credentials, including a password, for your Account. You are responsible for all activities that occur through your Account or through use of your Account credentials.
If you are registering as a Seller, a Maiaki representative will contact you to verify your eligibility and to take reasonable steps to ensure that Sellers are the direct producers of the Product, rather than brokers or related third parties.
We may cancel unconfirmed accounts or accounts that have been inactive for a long period of time, as determined in our discretion.
- Using the Service
You may not use the Service to:
- transmit any content, information or other materials that are, or which Maiaki considers in its sole discretion to be, unlawful, false, inaccurate, misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity;
- copy, rip or capture the Service or any Service Content;
- adapt, copy, republish, make available or otherwise publicly communicate, rip, capture, display, perform, transfer, share, distribute, rent, sell, loan or otherwise exploit the Service or any Service Content;
- sell or promote any products or services in violation of any applicable local, state, national or international law or regulation, including but not limited to any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages;
- introduce viruses, worms, Trojan horses and/or harmful code;
- display material that exploits children under 18 years of age;
- post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party;
- promote, solicit or participate in multi-level marketing or pyramid schemes;
- impersonate any other person, including but not limited to, a Maiaki representative;
- transmit any spam or unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests;
- manipulate the price of any Product or interfere with any other User’s use of the Service;
- transfer your Account to another party without our consent;
- export or re-export any part of the Service except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- harvest or otherwise collect information about other Users without their consent; circumvent any technical measures we use to provide the Service; or violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to) reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Service, any part thereof or access thereto.
If we believe or discover that you are abusing the Service in any of the ways mentioned above or otherwise, we may, in our sole discretion, take any steps to prevent and mitigate such abuse, including but not limited to limiting, suspending or terminating your Account and access to the Service, deleting any content provided or made available by you via the Service, or reducing or eliminating any discounts.
- International Sales and Purchases
Each User is solely responsible and liable for ensuring that its access and use of the Service, and sale, purchase and/or shipment of any Products, comply with applicable law, including but not limited to any applicable law relating to food production and regulation, trade, export, import, and distribution. Maiaki is not and will not be responsible or liable for any violation of applicable law resulting from your access and/or use of the Service.
- Purchase Agreement
You acknowledge and agree that any sale or purchase of Products is governed by the Purchase Agreement between you and the applicable Buyer or Seller, and that Maiaki is not a party to such Purchase Agreement (whether or not in the form of the Sample Agreement) and shall not be responsible or liable whatsoever in connection with any Order, Purchase Agreement (whether or not in the form of the Sample Agreement), Product, or any transaction between any Buyer and Seller. Without limiting the generality of the foregoing, Maiaki has no control over any Product, including, without limitation, any Product’s compliance with applicable food safety and other regulatory standards, at any stage of supply chain including production, processing, storing, and shipping.
In the event of any issue with any Purchase Agreement, Products or Orders, you acknowledge and agree that your only recourse is against the other party to the Purchase Agreement, and not Maiaki. Maiaki will not be responsible or liable for any loss or damage arising out of or in connection with any Products or Orders.
- Additional Terms for Buyers
Representations and Warranties. You represent and warrant that you have all rights, certifications and qualifications necessary to purchase, import, and trade any Products you purchase via the Service.
When purchasing any Products, you agree that:
- you are responsible for reading the Product listing, including but not limited to the Description, before committing to purchase;
- by placing any Order (subject to the limited right to cancel as described below), you are responsible for payment of all Fees associated with the Order.
You acknowledge and agree that by clicking the “I Agree” box, accessing or using the Service, offering Products for sale or purchasing Products, or receiving any related services from us, you hereby authorize Maiaki to debit your payment method for the total price of any Order placed via the Service using your account.
You represent and warrant that you have all rights, certifications and qualifications necessary to purchase, trade, and import any Products you purchase via the Service.
Pre-Shipping Inspection. After a Buyer places an Order, Maiaki will use commercially reasonable efforts to send a representative to inspect the Product and ensure it is in accordance with the Description provided on the Service. Without limiting the generality of Sections 14 and 15 (Disclaimer of Warranties; Limitation of Damages; Release), you acknowledge and agree that any such inspection is provided “as is,” without any warranty whatsoever, and that Maiaki does not guarantee that any Products purchased by you shall conform with the Description.
Cancellation. Orders cannot be cancelled, and the Buyer will be responsible for all Fees associated with any such Order placed by such Buyer or via such Buyer’s Account.
Payment of Fees. The Buyer is responsible for payment of all Fees. You must have a payment method on file before offering any Products for sale via the Service, and you must pay all Fees and applicable taxes associated with the Service by the payment due date, as set forth in these Terms or Policies. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. In addition, you will be subject to late fees of 1.5% of the balance past due or the highest amount permitted by applicable law, whichever is lower. We may change the Fees, or any part thereof, from time to time by posting changes on the Service 14 days in advance, but no advance notice is required for temporary promotions or temporary Fees changes.
Subscription Fees. Subject to any discount or promotion made available by Maiaki in its sole discretion, Buyers are responsible for paying to Maiaki, as part of the Fees, the Subscription Fees. The current annual (12 months) buyers’ Subscription Fees is $899.00.
Purchase Fees. After placing an Order, the total Purchase Fees due by Buyer will be claimed on such Buyer’s account before such Buyer receives the order in accordance with the Shipping Conditions. A Buyer’s Order will only be accepted if the Buyer’s payment method has sufficient funds to cover the Fees. If the Buyer’s Order has been accepted, a confirmation screen will appear on the Site and a confirmatory email will be sent to the Buyer. If you do not see the payment confirmation screen, your payment will not be processed. If you have any questions about our receipt of your payment, please complete and submit the question form available here. The Buyer is responsible for paying to Maiaki, as part of the Purchase Fees, the Maiaki Fees, which is $50 per 1 metric ton of purchased products. The Maiaki Fees are non-refundable. Some shipping providers may require prepayment or deposit of shipping fees. Please check the terms of service of the shipping provider you have chosen for more details. Please see Section 9 for more information about shipping providers.
- Additional Terms for Sellers.
Representations and Warranties. You represent and warrant that you have all rights, certifications and qualifications necessary to sell, trade, and export any Products you offer for sale via the Service.
Documentation. Sellers must provide or make available to the Buyer, prior to or immediately upon execution of a Purchase Agreement, all documentation (including all contracts, invoices and applicable certificates from the Seller and dedicated government authority) required for the purposes of the Order, including all documentation (i) necessary to confirm the Product’s country of origin, any applicable quality/standard and food tractability, and (ii) otherwise necessary for customs clearance.
Listing Conditions. When listing a Product, you agree that:
- you are solely responsible for the accuracy and content of the listing and Product offered;
- content that violates these Terms, as determined in our sole discretion, may be deleted or removed at any time; and
- we may place and/or organize Product listings in any manner at our sole discretion.
- Shipping and Transportation
The Service offers shipping through Third-Party Services. Please read carefully the applicable terms of service of the shipping provider of your choice before selecting such shipping provider. Maiaki will not be responsible or liable for any loss or damage arising from shipment by any shipping provider, in accordance with Section 13 (Third-Party Services).
- Additional Policies
When accessing or using the Service, to the maximum extent permitted by law, you will also be subject to all Policies. All Policies are hereby incorporated by refereince into these Terms.
- Your Content
When providing Maiaki or the Service with content or causing content to be posted using the Service (“Your Content”), including but not limited to any Description, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable (in whole or in part), fully-paid and sublicense right to use, reproduce, modify, transmit, display and distribute Your Content in any media known now or developed in the future, in connection with our provision of the Service. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.
You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of Your Content to us, your causing Your Content to be posted using the Service, and use of any such content (including of works derived from it) by us, Users, or others in contract with us that is done in connection with the Service and in compliance with these Terms.
- Copyright Complaints
DMCA Take-Down Notices
If you are a copyright owner or an agent thereof and believe, in good faith, that any materials on the Service infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C. 512) (the “DMCA”) by sending the following information in writing to Maiaki’s designated copyright agent at [email@example.com]:
- The date of your notification;
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- A description of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to enable Maiaki to locate the material;
- Information reasonably sufficient to permit Maiaki to contact you, such as an address, telephone number and/or email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The failure to send proper notification pursuant to the DMCA may result in our taking incomplete or no action with respect to the allegedly infringing material described in such improper notification, and under some circumstances may even result in liability to the person(s) submitting such improper notifications.
If you believe that your content that has been removed from the Service is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent or pursuant to the law, to post and use the content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
- Your physical or electronic signature;
- A description of the content that has been removed and the location at which the content appeared before it was removed;
- A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number and email address, a statement that you consent to the jurisdiction of the federal court in the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Maiaki copyright agent, Maiaki may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed content may (in Maiaki’s discretion) be reinstated on the Service within 10 to 14 business days after receipt of the counter-notice.
- Third Party Services
We may provide or make available via the Service access to third-party tools, websites, products and services (“Third-Party Services”), including but not limited to shipping services as set forth in Section 9 (Shipping and Transportation). You acknowledge and agree that we do not monitor or control any Third-Party Services and that we provide access to such Third-Party Services on an “as is” and “as available” basis, without any warranties, representations or conditions of any kind and without endorsement. We shall have no liability whatsoever arising from or relating to your use of Third-Party Services. Any use by you of Third-Party Services is entirely at your own risk or discretion, and may be subject to additional terms and conditions of the applicable third party or third parties. Complaints, claims, concerns or questions regarding any Third-Party Services should be directed to the applicable third party.
- Disclaimer of Warranties
THE SERVICE (INCLUDING BUT NOT LIMITED TO ALL SERVICE CONTENT) IS PROVIDED “AS IS,” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAIAKI EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE, ALL SERVICE CONTENT AND ANY PRODUCTS PURCHASED THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MAIAKI MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR ANY SERVICE CONTENT WILL BE COMPLETE, COMPREHENSIVE, ACCURATE OR UP-TO-DATE. MAIAKI MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICE, SERVICE CONTENT, PRODUCTS, OR OTHER MATERIAL OR GOODS OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
MAIAKI IS NOT RESPONSIBLE FOR THE ACCURACY, AVAILABILITY OR RELIABILITY OF ANY INFORMATION, CONTENT, SAMPLE AGREEMENT, PRODUCTS. GOODS, DATA, OPINIONS, ADVICE OR STATEMENTS MADE AVAILABLE ON OR THROUGH THE SERVICE. AS SUCH, MAIAKI IS NOT LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON SUCH INFORMATION OR PRODUCTS. MAIAKI ENABLES THESE FEATURES AS A CONVENIENCE AND THE INCLUSION OF SUCH FEATURES DOES NOT IMPLY AN ENDORSEMENT OR RECOMMENDATION.
YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICE AND ANY SERVICE CONTENT, PRODUCTS OR OTHER INFORMATION, MATERIAL OR GOODS OBTAINED FROM OR THROUGH THE SERVICE, EXCEPT TO THE EXTENT SUCH PRODUCTS ARE SUBJECT TO A WARRANTY OFFERED BY A SELLER, IN WHICH CASE SUCH SELLER SHALL BE SOLELY RESPONSIBLE WITH RESPECT TO SUCH WARRANTY.
You hereby acknowledge and agree that this disclaimer of warranties is a fundamental part of the agreement between you and Maiaki contained in these Terms and that Maiaki would not agree to enter these Terms or allow you access or use the Service without such disclaimers. Some jurisdictions limit or do not permit disclaimers of warranty, so this provision may not apply to you.
- Limitation of Damages; Release
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MAIAKI, ITS OFFICERS, EMPLOYEES OR AGENTS, OR ITS LICENSORS OR THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER YOU, FOR (1) ANY DAMAGES TO OR VIRUS THAT MAY INFECT YOUR EQUIPMENT OR OTHER PROPERTY AS THE RESULT OF ACCESS OR USE OF THE SERVICE OR ANY PRODUCTS; OR (2) ANY LOSS, CLAIM, OR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, SERVICES OR EQUIPMENT DOWNTIME, LOST OPPORTUNITY, REPUTATIONAL HARM, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING AND REGARDLESS OF CAUSE OF ACTION, THAT, IN EITHER CASE, RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF SERVICE CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE OR ANY PRODUCTS; (C) THE SERVICE GENERALLY, ANY PRODUCTS, OR THE SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH MAIAKI OR ANY OTHER USER OF THE SERVICE, INCLUDING ANY SELLER OR BUYER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT MAIAKI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON MAIAKI FOR ANY REASON WHATSOEVER HEREUNDER, THE AGGREGATE AMOUNTS PAYABLE BY MAIAKI TO YOU BY REASON THEREOF WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). You acknowledge that the foregoing limitations are an essential element of the agreement between the parties and that in the absence of such limitations the terms and conditions set forth in these Terms would be substantially different. Some jurisdictions limit or do not permit disclaimers of liability, so this provision may not apply to you.
If you have a dispute with one or more users of the Service, including but not limited to any Buyer, Seller or any other third party resulting from or arising out of or in connection with your use of the Service, you release Maiaki (and our officers, agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You agree that our remedy at law for any actual or threatened breach of these Terms would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys’ fees.
No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including, without limitation, damages, injunctive relief, attorneys’ fees and expenses.
No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.
You will indemnify, defend and hold harmless Maiaki, its officers, employees, agents and representatives from and against any and all claims, losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, including but not limited to attorneys’ fees and court costs, arising out of or in connection with (i) your use of the Service or any part thereof, (ii) any claim made by any other User related; and/or (iii) Your Content.
- Modification of these Terms
We may amend these Terms at any time. Any amendments will be effective immediately when we post them and apply to all access to and use of the Service thereafter. It is your sole responsibility to check the Service from time to time to view any such changes in these Terms. If you continue to access or use the Service, you signify your agreement to our revisions to the revised Terms. However, we will notify you of material changes to these Terms by posting a notice on our homepage and/or sending an email to the email address we have on file for you at the time the amended Terms are posted. For this additional reason, you should keep your contact and account information current. Any changes to these Terms (other than as set forth in this paragraph) or waiver of Maiaki’s rights hereunder will not be valid or effective except in a written agreement bearing the physical signature of an officer of Maiaki.
- Term and Termination and Effect of Termination
Termination by Maiaki. In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate these Terms or revoke any or all of your rights granted under the Terms and terminate or suspend your account or ability to use the Service, in whole or in part, without notice, at any time in our sole discretion for any or no reason, including for, as determined in our sole discretion, (i) your violation of these Terms or any other rules that govern the use of the Service, or (ii) conduct by you which is harmful to Maiaki or others or could cause Maiaki or others to incur liability. If we terminate or suspend your account or ability to use the Service for any reason other than because of (i) or (ii), as determined in our sole discretion, we will refund you on a pro-rata basis for any prepaid, unused months remaining in the then-current year of your Service subscription. You agree that if we terminate or suspend your account or ability to use the Service because of (i) or (ii), as determined in our sole discretion, Maiaki will not refund any Fees or other amounts that you have already paid, to the fullest extent permitted under applicable law.
Termination by You. You may terminate your Service account at any time by providing Maiaki with notice of termination via email to firstname.lastname@example.org. You agree that if you terminate your account at any time, Maiaki will not refund any Fees or other amounts that you have already paid, to the fullest extent permitted under applicable law.
Effects of Termination. Upon any termination of these Terms, you shall immediately cease all access to and use of the Service, and we may, in addition to any other legal or equitable remedies, immediately revoke all password(s) and username(s) issued to you and deny your access to and use of the Service in whole or in part. Any termination of these Terms shall not affect the respective rights and obligations (including, without limitation, payment obligations) of Maiaki or any user of the Service, including but not limited to any Seller or Buyer, that arose before the date of termination. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity obligations and limitations of liability.
- User Consent to Receive Communications in Electronic Form
For contractual purposes, you (a) consent to receive communications from Maiaki in an electronic form via the email address you have submitted; and (b) agree that all Terms, agreements, notices, disclosures and other communications that Maiaki provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your non-waivable rights.
- Dispute Resolution, Arbitration and Class Action Waiver
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS OR BREACH OR INTERPRETATION THEREOF OR THE SERVICES WILL BE SOLELY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS AND CONDITIONS OF THESE TERMS AS A COURT WOULD.
Such arbitration will be conducted in the County of Suffolk, Massachusetts in accordance with the rules of the American Arbitration Association (“AAA”) then in effect, including the AAA’s Commercial Arbitration Rules, before a single arbitrator appointed in accordance with such rules and applying the laws of the Commonwealth of Massachusetts, without regard to conflict of law provisions. Judgment upon any award rendered therein may be entered and enforcement obtained thereon in any court having jurisdiction. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have authority to grant any form of appropriate relief (other than punitive damages), whether legal or equitable in nature, including specific performance. Maiaki and you agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity. By agreeing to arbitrate, you are agreeing to waive your right to a jury trial.
If you intend to seek arbitration you must first send written notice to Maiaki of your intent to arbitrate (“Notice”). The Notice to Maiaki should be clearly labeled “Notice of Intent to Bring Dispute to Arbitration” and be sent by email to Maiaki at email@example.com. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought.
YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, MAIAKI AND YOU EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Notwithstanding the above, Maiaki and you also both agree that you or we may bring suit in court for injunctive relief, including to enjoin infringement or other misuse of intellectual property rights.
Jurisdictional Issues. Maiaki makes no representation that the Service is appropriate or available for use outside the United States. Those who choose to access the Service or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws.
Export Laws. The laws of the United States prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Service, including the Service Content, or any part thereof, in any way, in violation of United States law.
No Joint Venture. No joint venture, partnership, employment, or agency relationship exists between you and Maiaki as a result of this Agreement.
Entire Agreement. These Terms are the entire agreement between you and Maiaki and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No employee, agent or other representative of Maiaki has any authority to bind Maiaki with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
Severability and Waiver. If any part of these Terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Assignment. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. Maiaki may assign these Terms at any time without notice to you.
Force Majeure. Maiaki will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Maiaki’s reasonable control.
Contact Information: Please send any questions or comments, or report violations of these Terms, to Maiaki at firstname.lastname@example.org or Maiaki, Inc., 210 Broadway, Suite 201, Cambridge, MA, 02139.