MAKE HAY TERMS OF SERVICE
Last Updated: 12/11/2024
These Terms of Service (“Terms”)apply to your access to and use of (i) the website located athttps://www.gomakehay.com/home (or any successor links) and all associated webpages, websites, and social media pages (the “Site”) provided by Make Hay, Inc. (“Make Hay”, “we”, “our” or “us”)and (ii) online services (including the Site, together the “Services”).
THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION REQUIREMENT AND CLASS-ACTION WAIVER, WHICH MEANS YOU AND MAKE HAY AGREE TO RESOLVE MOST DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND NOT BY MEANS OF A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR A JURY TRIAL. (SEE SECTION 16). YOU MAYOPT OUT OF THE ARBITRATION REQUIREMENT WITHIN 30 DAYS OF ACCEPTING THESE TERMS; INSTRUCTIONS FOR OPTING OUT ARE IN SECTION 16 BELOW. IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW, DO NOTUSE MAKE HAY’S SERVICES.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
1. Eligibility and Use Restrictions
(a) Age. Users under 18 years of age (or the age of legal majority where you live) may not use our Services. If you are a parent or guardian and you believe that your child under the age of 18 is using our Services without your consent, please contact us at contact@gomakehay.com.
(b) Authorization. If you use our Services on behalf of another person or entity, (i) all references to “you” throughout these Terms (other than in this Section 1(b)) will include that person or entity, (ii) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (iii) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us.
(c) Jurisdiction. You may only use our Services in jurisdictions authorized by Make Hay. Use of our Services is currently authorized only in the United States.
(d) Use and Sharing. Our Services are provided to you only for your internal or commercial use and not for the benefit or use of any third party. Make Hay may enable you to designate authorized individuals (“Authorized Users”) to use our Services, and only Authorized Users may use our Services. You will be solely responsible for your Authorized Users and their activity in connection with the Services.
2. Your Information
You may provide certain information to Make Hay in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails, SMS or text messages, and other types of communication from Make Hay via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to Make Hay in connection with the Services is accurate. This is not a condition for using our Services. To opt-out at anytime, please follow the opt-out instructions provided in such communications.
For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.
3. Accounts
You, and your Authorized Users, as applicable, must create an account with Make Hay in order to use some or all of our Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other website or online service. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If applicable, you will ensure that all of your Authorized Users comply with all account requirements set forth in this Section 3. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.
4. User Content
(a) In addition to Submission Content, our Services may allow you and other users to create, post, store, and share content, including reviews, messages, text, photos, videos, music, sound, graphics, Submission Content (defined below) and other information and materials and (collectively, “User Content”). When you submit or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. If you choose to submit your information available through the Services, you do so at your own risk.
(b) Except as set forth herein, as between you and Make Hay, you retain all rights in and to your User Content, excluding any portion of the Services included in or associated with your User Content. You grant Make Hay and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation of any kind to you or any third party. You hereby irrevocably waive, and agree not to claim or assert any entitlement to, any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content and Submission Content that you may have under any applicable law or under any legal theory.
(c) You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content (including Submission Content), and our use of such User Content (including Submission Content), as permitted by these Terms, will not violate any rights of any person or entity, including any rights of publicity or privacy, intellectual property rights, or other proprietary rights, or cause injury to any person or entity. You may not create, submit, store, or share any User Content (including Submission Content), that:
▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
▪ Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
▪ May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
▪ Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
▪ Impersonates, or misrepresents your affiliation with, any person or entity;
▪ Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
▪ Contains any private or personal information of a third party without such third party’s consent;
▪ Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Make Hay or others to any harm or liability of any type.
(d) Enforcement of this Section 4 is solely at Make Hay’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
(e) We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
▪ Delete or remove User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
▪ Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
▪ Take any action with respect to your User Content that is necessary or appropriate, in Make Hay’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Make Hay’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
▪ As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.
5. Submission Content
(a) From time to time, Make Hay and its clients may issue requests for specific User Content through our Services (“Submission Requests”). Submission Requests are Supplemental Terms and will contain information describing the type of User Content desired, including any parameters and restrictions, any compensation if Submission Content (defined below) is selected, and any applicable supplemental payment terms. Our Services will allow you to submit User Content in response to Submission Requests, including text, photos, videos, music, sound, graphics, and other information and materials (collectively, “Submission Content”). By submitting Submission Content, you agree to any terms and conditions set forth in the applicable Submission Request.
(b) We will notify you in writing if your Submission Content is selected to fulfill a Submission Request(“Selection Notice”). When your Submission Content is selected, Make Hay will own such Submission Content and you will, and hereby do, assign all right, title, and interest in and to such Submission Content to Make Hay. Upon such assignment, your rights to use such Submission Content cease, unless otherwise set forth in a Submission Request. You will not be compensated for your Submission Content, and Make Hay will not own Submission Content, unless it is selected in connection with a Submission Request.
(c) Make Hay will issue a payment for your selected Submission Content (“Selection Fee”) thirty (30) days from the first day of the calendar month following the date you receive a Selection Notice for such selected Submission Content. Make Hay will pay Selection Fees through its third-party payment processor, which may require you to supply certain relevant information, such as your bank account information, in order to receive Selection Fees. Payment of Selection Fees are conditioned upon and subject to any terms and conditions required by Make Hay’s third-party payment processor.
6. Prohibited Conduct
(a) You will not use our Services if you are not eligible to use our Services in accordance with Section1 and will not use our Services other than for their intended purpose. Further, you will not, in connection with our Services:
▪ Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
▪ Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
▪ Use or attempt to use another user’s account or information without authorization from that user and Make Hay;
▪ Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
▪ Sell or resell our Services;
▪ Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
▪ Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
▪ Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
▪ Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
▪ Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results ,provided that Make Hay grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Make Hay reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
▪ Develop or use any applications or software that interact with our Services without our prior written consent;
▪ Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
▪ Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by Make Hay; or
▪ Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(b) Enforcement of this Section 6 is solely at Make Hay’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
7. Promotions
Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.
8. Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by Make Hay or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Sections 4, 5, and 6), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your internal or commercial use and solely with respect to any applications included in the Services, install and use such application on a mobile or personal device that you own or control. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights.
9. Trademarks
Make Hay [Make Hay™] and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Make Hay and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
10. Feedback
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Make Hay or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in Make Hay’s sole discretion. Make Hay will exclusively own all improvements to, or new, Make Hay products, services, or Services based on any Feedback. You understand that Make Hay may treat Feedback as nonconfidential.
11. Third-Party Materials
(a) Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (a) the use and availability of the Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
(b) We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through our Services at any time. Your access to and use of such Third-Party Materials maybe subject to additional terms, conditions, and policies, including terms of service or privacy policies of the providers of such Third-Party Materials. You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.
12. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Make Hay and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “Make Hay Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content, Submission Content, or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Make Hay Parties of any third-party Claims, cooperate with Make Hay Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees). The Make Hay Parties will have control of the defense or settlement, at Make Hay‘s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Make Hay or the other Make Hay Parties.
13. Disclaimers
Your use of our Services and any content or materials provided therein or therewith (including Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Services, and any content or materials provided therein or therewith (including Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. Make Hay disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Make Hay does not represent or warrant that our Services or any content provided therein or therewith (including Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith (including Third-Party Materials) will be uninterrupted. While Make Hay attempts to make your use of our Services and any content provided therein or therewith (includingThird-Party Materials) safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith (including Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services and any content provided therein or therewith (including Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Make Hay, Make Hay Parties, and Make Hay’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.
14. Limitation of Liability
(a) To the fullest extent permitted by applicable law, Make Hay and the other Make Hay Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Make Hay or the other Make Hay Parties have been advised of the possibility of such damages.
(b) The total liability of Make Hay and the other Make Hay Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $1,000 or the amounts paid to you for selected Submission Content.
(c) The limitations set forth in this Section 14 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Make Hay or the other Make Hay Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
15. Release
To the fullest extent permitted by applicable law, you release Make Hay and the other Make Hay Parties from responsibility, liability ,claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
16. Dispute Resolution; Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND MAKE HAY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND MAKE HAY FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND MAKE HAY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. MAKE HAY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES ACKNOWLEDGE THAT THE TERMS IN THIS SECTION ARE INTENDED REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY’S CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW IN THIS SECTION 16 IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a) Claims Subject to this Section. The dispute resolution and binding arbitration terms in this Section 16 apply to all Claims between you and Make Hay. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed below) between you and Make Hay, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to these Terms or our Services, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.
(b) Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Make Hay or if Make Hay has a Claim against you, you and Make Hay will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and Make Hay will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with these Terms.
You will send any Claimant Notice to Make Hay by email to info@makehay.com. Make Hay will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Make Hay. The Claimant Notice sent by either party must(i) include the sender’s name, address, email address, and telephone number;(ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
The Informal Resolution Period is intended to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Make Hay cannot proceed to arbitration before the end of the Informal Resolution Period. If you or Make Hay file a Claim in court or proceed to arbitration without providing a compliant Claimant Notice and waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the informal resolution process to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim shall be tolled for the duration of the Information Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.
(c) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or Make Hay, including any disputes in which you or Make Hay seek injunctive or other equitable relief for the alleged unlawful use of your or Make Hay’s intellectual property or other infringement of your or Make Hay’s intellectual property rights (“IP Claims”), all Claims, aims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 16(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
YOUAND MAKE HAY AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS ANDNOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. MAKE HAY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
(d) Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”),https://namadr.com,according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”)and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by these Terms.
If NAM notifies the parties in writing(email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and Make Hay as modified by these Terms. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and Make Hay as modified by these Terms.
These Terms affect interstate commerce, and the enforceability of this Section 16 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claimant to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Make Hay to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
(e) Arbitration Procedure and Location. You or Make Hay may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules(or with AAA in accordance with the Rules if applicable pursuant to Section12(d)).
Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at800-778-7879. You will send a copy of any demand for arbitration to Make Hay by email to info@makehay.com. Make Hay will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Make Hay.
The arbitration will be conducted by a single arbitrator in the English language. You and Make Hay both agree that the arbitrator will be bound by these Terms. If an in-person hearing is required and you reside in the United States, the hearing will take place in Suffolk County, Massachusetts unless the arbitrator determines otherwise.
(f) Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and these Terms.
(g) Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a non frivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
(h) Offers of Settlement: Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable to a party than the latest written offer of settlement that party did not accept, that party must pay all costs and fees—including arbitration, attorney, and expert fees—incurred by the other party after the written settlement offer was made. The terms of any settlement offer may not be disclosed to an arbitrator until after the arbitrator issues a decision or award on the Claim.
(i) One Year to Assert Claims. To the extent permitted by law, any Claim by you or Make Hay against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or Make Hay will no longer have the right to assert that Claim.
(j) Confidentiality. If you or Make Hay submits a Claim to arbitration, you and Make Hay agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and Make Hay agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
(k) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at info@makehay.com. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 17.
(l) Rejection of Future Arbitration Changes. You may reject any change we make to Section 16(except address changes) by sending us notice of your rejection within 30 days of the change via email at info@makehay.com. Changes to Section 16 may only be rejected as a whole, and you may not reject only certain changes to Section 16.If you reject changes made to Section 16, the most recent version of Section 16that you have not rejected will continue to apply.
(m) Severability. If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii)severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.
17. Governing Law
Any Claims will be governed by and construed and enforced in accordance with the laws of the State of Delaware, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section16, then the state and federal courts located in the County of Suffolk County, Massachusetts, will have exclusive jurisdiction. You and Make Hay waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
18. Modifying and Terminating Our Services
We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify, or waive any fees required to use the Services; or offer opportunities to some orall end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Services will be governed by these Terms or theSupplemental Terms, unless otherwise expressly stated by Make Hay in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
19. Severability
If any portion of these Terms other than Section 16 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render these Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly ,so as to preserve these Terms and the intent of these Terms to the fullest possible extent.
20. Export Control
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or(b) on any of the U.S. government lists of restricted end users.
21. Miscellaneous
(a) Make Hay’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
(b) If you have a question or complaint regarding the Services, please send an email to info@makehay.com. You may also contact us by writing to 68 Harrison Ave, Ste 605, PMB 41305, Boston MA 02111. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us.