Last Revision: Nov 23, 2011 - Introduction of plans
These Terms of Service ("Terms") govern your access to and use of the services and makandra's "makandra cards" websites (the "Services"), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as "Content"). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.
You are responsible for your use of the Services, for any Content you post to the Services, and for any consequences thereof.
As a user (the "User") you can access publicly visible Content on the Services without any registration.
You can also register an account and become a customer (the "Customer") for providing your own Content to the Services or accessing other Customers' Content. Customers may use the Services for private or commercial purposes. If you make commercial use of the Services, makandra may mention your company's name and logo on the Services reference customer list.
As a Customer you can upgrade your free account to a paid account (the "Paid User") at any time to get more features. For Details (the "Plans") see the Subscription Fees and Term sections below.
The Content you submit, post, or display may be able to be viewed by other users of the Services.
As a Paid User you can create different domains for Content (the "Decks") and invite other users to become Customers and have access to your Decks. You should only invite other People you are comfortable sharing your Content with and only provide Content that you are comfortable sharing with others under these Terms. When a Customer creates a Deck he becomes "the Owner" of this Deck. Ownership of a Deck can be changed at any time in the Deck settings view. As a Customer you can own a maximum of 25 Decks.
You may use the Services only if you can form a binding contract with makandra and are not a person barred from receiving services under German laws or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
The Services that makandra provides are always evolving and the form and nature of the Services that makandra provides may change from time to time without prior notice to you. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.
makandra does not own any of the Customer's Content. Customer is solely responsible for the accuracy, integrity, and legality of Customer's Content. We may not monitor or control the Content posted via the Services and, makandra shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss or failure to any of Customer's Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
Customer shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information or social security numbers, driver's license or personal identification numbers or account numbers on, to or from the Services. Customer represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any of Customer's Content provided and its use of the Services and performance of its obligations under this Agreement. Customer will indemnify, defend and hold makandra harmless from any claims, losses and causes of action arising out of or related to Customer's breach of this Section.
The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by makandra of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Users and Customers shall not: (a) rent, lease or loan the Services; (b) conduct automated functionality tests or load tests on the Services; (c) attempt to gain access to data that is not User's or Customer's Data, or use a disproportionate amount of the Services that interrupts or degrades the Services; or (d) use the Services in any manner that violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right.
Users and Customers may not use the Services in any way that violates applicable federal, state, or international law, or for any unlawful purpose. Users and Customers may not use the Services to send, receive, or download messages or materials that are inappropriate or violate the intellectual property rights of makandra or others. Customers are entirely responsible for the content of, and any harm resulting from any Content provided to the Services. When you post or access Content, you represent and warrant that you:
(a) will not attempt to harm, disrupt, or otherwise engage in activity that diminishes, the Services and will not post Content that constitute, contain, install or promote spyware, malware or other computer code, whether on makandra's or others' computers or equipment, designated to enable you or others to gather information about or monitor the online or other activities of another party;
(b) will not attempt to interfere with any other person's use of the Services;
(c) will not misrepresent your identity or impersonate any person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
(d) will not attempt to gain access to any account, computers or networks related to the Services without authorization;
(e) will not attempt to obtain any data through any means from the Services, except if we intend to provide or make it available to you;
(f) will not attempt to charge others to use the Services either directly or indirectly;
(g) will not use the Services to participate in pyramid schemes or to transmit chain letters, or to create an undue burden on the Services Site or the networks or services connected to the Services Site, including, without limitation, hacking into the Services Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
(h) will not use the Services for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited e-mail or communications or unsolicited commercial e-mail or other communications or engaging in unauthorized faming of, or linking to, the Services Site without the express written consent of makandra;
(i) will not post Content that (1) are defamatory, damaging, disruptive, unlawful, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable or incite, encourage or threaten immediate physical harm against another, including but not limited to Content that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual, or (2) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
(j) will not use the Services to send or otherwise make available, any Content unless you own or have sufficient rights to such Content or have received all necessary consents to post such Content;
(k) will not post Content that violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of makandra or any other person;
(l) have fully complied with any third-party licenses relating to Content, agree to pay for all royalties, fees and any other monies owning any person by reason of Content that you posted to or through the Services;
(m) will not use the Services to send or otherwise making available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property;
(n) will not use the Services to download any material sent by another user of the Services that you know, or reasonably should know, cannot be legally distributed in such manner;
(o) will not use the Services to violate any code of conduct or other guidelines which may be applicable to the Services;
(p) will not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by makandra in connection with the Services;
(q) will not post Content that contain advertisements or solicit any person to buy or sell any products or services (other than makandra products and services); and
(r) will not post Content that is primarily intended to increase the ranking of other websites in search engines ("search engine optimization").
When an Account is first created, it is automatically placed on a free plan (the "Free Plan"). The Free Plan can have an unlimited number of private cards per Deck (only visible to the Customer) but cannot have any publicly visible cards. The Customer can upgrade his account to a paid Plan (the "Premium Plan") at any time within his account settings. The Premium Plan can have an unlimited number of publicly visible and confidential cards per Deck.
The amount of Subscription Fees, if any, are determined by the Plan selected on the Upgrade Account Page. There is an annual billing for the applicable Subscription Fees. Paid User shall pay the Subscription Fees to makandra on the date Paid User first upgrades to a paid Plan (the "First Upgrade Date") and on every yearly anniversary of the Effective Date during the term of the Agreement. User is responsible for all taxes, other than taxes levied on makandra's income. Subscription Fees do not include any applicable taxes. If makandra is required to pay any sales, use, goods and services, value added, or other taxes in relation to Paid User's purchase, those taxes will be billed to and paid by Paid User. If either party terminates the Agreement before the end of the then-current term, makandra shall not refund any fees to Paid User.
This Agreement shall begin on the Effective Date and continue for the Term subject to earlier termination by either makandra or Customer in accordance with this Agreement. Thereafter, the Agreement will automatically renew for successive one-year terms unless and until either party provides written notice to the other party, at least 30 days prior to the expiration of the then current term of its intention not to renew the Agreement or unless earlier terminated by either party in accordance with this Agreement.
Either party may immediately terminate this Agreement as follows: (a) if either party materially breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days after it has been notified in writing of such breach; or (b) if either party has instituted against it any proceedings seeking relief, reorganization or arrangement under any laws relating to insolvency and such proceeding is not resolved within sixty (60) days.
All provisions of this Agreement, which by their terms or import are intended to survive such cancellation or termination, shall survive.
As between you and makandra, you exclusively own all rights in and to the Content that you submit to the Services. makandra needs a limited license from you so that we can use your Content to make the Services available to you. By posting Content to the Services, you grant to makandra a limited, perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to makandra), fully-paid, royalty-free (meaning that makandra is not required to pay you to use your Content), sub-licensable (subject to the restrictions below), transferable (solely because we need the right to transfer this license to a successor Services operator) and worldwide (because the Internet and the Services are global in reach) license to use, modify, perform, display, reproduce and distribute the Contribution for the sole purpose of operating the Services. makandra needs the right to "modify" and "reproduce" your Content, because the software and servers hosting the Services modify and reproduce your Content automatically in order to make the Services available. We will only sub-license your Content for the following purposes: (a) to make your Content available to any third party (such as a Customer or a contractor) that you permit to view your Decks on the Services; and (b) to permit a third party hosted services provider to host the Services Site.
Despite having content that is non-public, as a Paid User, you can set Content as deck-member-shared, which is then only visible to other Customers listed in the User's list of the Deck. To provide the Services makandra may have access to all Content provided by a Customer to the Services. makandra agrees to handle Confidential Information as follows:
Definition. "Confidential Information" shall mean all non-public information, whether in oral, written or other tangible form that either party (the "Discloser") discloses to the other party (the "Recipient") as being confidential, including without limitation the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public other than (i) as a result of a disclosure by Recipient or its employees or any other person who directly or indirectly receives such information from Discloser or its employees or (ii) in violation of a confidentiality obligation to Discloser that is known to Recipient, (b) is or becomes available to Recipient on a non confidential basis from a source which is entitled to disclose it to the Recipient, (c) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser, or (d) is disclosed pursuant to an order of a court or other governmental body; provided that Recipient shall provide prompt notice thereof to Discloser so as to afford Discloser an opportunity to intervene and prevent or limit any such disclosure.
Non-Disclosure and Non-Use Obligation. Recipient shall not make use of (except for purposes of this Agreement), or disseminate or in any way disclose Discloser's Confidential Information. Recipient shall treat Discloser's Confidential Information with the same degree (but not less than a reasonable degree) of care as it accords its own confidential information. Recipient may disclose Confidential Information only to its employees who need to know such information and certifies that its employees have previously agreed, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement. Recipient will immediately give notice to Discloser of any unauthorized use or disclosure of Discloser's Confidential Information and will use all commercially reasonable efforts to assist Discloser in remedying any such unauthorized use or disclosure.
makandra respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification 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 permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you 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 (vi) 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 copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, makandra will also terminate a Customer's account if the Customer is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Attn: Copyright Agent Werner-von-Siemens-Str. 6 86159 Augsburg Germany
CUSTOMER AGREES THAT CUSTOMER'S ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICES IS AT CUSTOMER'S SOLE RISK. THE SERVICES IS PROVIDED "AS IS" AND "AS AVAILABLE", AND MAKANDRA AND ITS CONTRACTORS AND LICENSORS, AS APPLICABLE, MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF PROPRIETARY RIGHTS. CUSTOMER ACKNOWLEDGES THAT THE OPERATION OF THE SERVICES MAY NOT BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND MAKANDRA SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAKANDRA AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICES; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT MAKANDRA 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. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
Customer will defend or settle, at Customer's expense, any action brought against makandra based upon the claim that any modifications Customer makes to the Services or any combination of the makandra cards service with makandra cards service or other items not approved by makandra infringes or violates any third party intellectual property right.
This Terms shall be governed by and construed under German laws, without regard to conflicts of laws rules. Each party accepts unconditionally the jurisdiction and venue of the district courts located in Augsburg, Germany. This Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Customer understands and agrees that its breach of this Terms will cause makandra irreparable damage for which recovery of money damages would be inadequate, and that makandra shall therefore be entitled to obtain timely injunctive relief to protect makandra's rights under this Terms in addition to any and all remedies available at law.
We may revise these Terms from time to time, the most current version will always be at makandracards.com/terms_of_service. If the revision, in our sole discretion, is material we will notify you via an Update-Message on the Services or e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
These Services are operated and provided by makandra GmbH, Werner-von-Siemens-Str. 6, 86159 Augsburg, Germany. If you have any questions about these Terms, please contact us.