TERMS OF USE
(Last modified April 7, 2016)
THESE TERMS OF USE CONTAIN LEGAL OBLIGATIONS. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE WEBSITE.
1. Introduction, Acceptance, Parties, and Modifications
Welcome to the Makeful E-Learning website located at http://learn.bemakeful.com (the “Website”) which includes all subdomains and sub-pages present and future. We hope you enjoy your visit and / or use of the Website, which may include the purchase of certain products as described below.
By visiting and / or using the Website you agree to be bound by the terms of the present agreement, known as the Terms of Use (the “TOU”), without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the TOU, you are not authorized to use the Website. The TOU are a legal and binding agreement between you and us.
The Website is in and of itself a subdomain of the larger Makeful website located at http://bemakeful.com. Please note that your use of the larger Makeful website is governed by a separate Terms and Conditions which you can access here . These TOU apply only to the Website.
The Website is owned and operated by Blue Ant Media Inc. (or one of its affiliates) (“Blue Ant Media”), an Ontario corporation located at 130 Merton Street, Suite 200, Toronto, Ontario, M4S 1A4. Where the present TOU refers to “Blue Ant Media”, it may refer to Blue Ant Media Inc. and / or its officers, directors, employees, agents, representatives, subsidiaries or affiliates, depending on the context. Any reference to “we”, “our”, or “us” in these TOU shall also refer to Blue Ant Media.
In these TOU, a Website visitor or user may be referred to as “you” or “your”. When a Website user has created an account and is logged in, they may be referred to as a “Logged-in User”. When a Website user has made a purchase, they may be referred to as a “Customer”.
Blue Ant Media reserves the right, at any time and without prior notice, to modify or replace any of the TOU. Any changes to the TOU can be found at this URL. It is your responsibility to check the TOU periodically for changes. Your use of the Website following the posting of any changes to the TOU constitutes acceptance of those changes. If we make any substantial changes to the TOU that materially affect your legal relationship with Blue Ant Media, we will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account or by posting a prominent notice when you log in to your account for the first time following those changes.
The TOU should be read in conjunction with the Privacy Policy, as both these documents govern your use of the Website.
If you have any questions about the TOU, please contact:
or:
Blue Ant Media
130 Merton Street, Suite 200
Toronto, Ontario
M4S 1A4
2. General Code of Conduct for Use of the Website
By visiting and / or using the Website, you agree that you will:
(i)Not use the Website in any manner that in any way violates these TOU;
(ii)Not use the Website in any manner that violates any intellectual property rights of any third party;
(iii)Not use the Website in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website;
(iv)Not use the Website in any manner to propagate software viruses, Trojan horses, worms, or any other malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment in any form whether belonging to Blue Ant Media or a third party, or to damage or obtain unauthorized access to any system, data, password or other information (whether Personal Information or not) of Blue Ant Media, other Website users, or any other third party;
(v)Not: (1) take any action that imposes or may impose (as determined by Blue Ant Media in its sole discretion) an unreasonable or disproportionately large load on Blue Ant Media’s (or its third party providers’) infrastructures; (2) interfere or attempt to interfere with the proper functioning of the Website or any activities conducted on the Website; (3) bypass any measures Blue Ant Media may use to prevent or restrict access to the Website or any element thereof; (4) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website; or (5) harvest or scrape any content from the Website in an unreasonable manner;
(vi)Use the Website in good faith, and in compliance with all applicable local, provincial, state, national, and international laws.
3. Accounts, Passwords and Logged-in Users
In order to make a purchase on the Website, you are required to create an account. Accounts are free, and are available to anyone who provides the requisite information. The information required to create an account is the following: a valid email address, first and last name, and selecting your country location. This information may be referred to in the present TOU or the Privacy Policy as “Account Information”. You agree that the Account Information you provide shall be accurate and current.
As part of the account registration, you will be asked to choose a password. It is your responsibility to create a password of sufficient strength that cannot easily be discovered by third parties, or that can personally identify you. We urge you not to share your user name and password with anyone and recommend that you change your password frequently.
If you are a Logged-in User, it is strongly suggested that you log out of your account at the end of every session, or not leave a logged-in account unattended for any period of time. Blue Ant Media, its affiliates and subsidiaries, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively “Representatives”), will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Website with your account information and accessing your account through any means, and disclaims any responsibility in this regard. You agree to notify us of any unauthorized use of your password or account of which you become aware.
Blue Ant Media reserves the right to terminate your account, at its sole discretion, at any time and for any reason, including but not limited to whether you have violated the letter or spirit of the TOU, as more further described hereinbelow.
4. Purchases of Courses
Blue Ant Media allows Website Logged-In Users to purchase a subscription to a series of instructional videos, which may be referred to in the TOU or Privacy Policy as a “Course”.
If you are making a purchase of a Course, you declare being above 18 years old and having the legal capacity to make a purchase, or you have received parental authorization allowing you to make a purchase on the Website. Where you have received such permission, please take note of section 6 “Responsibility of Minors” hereinbelow.
a. Payment Processing
All purchases of Courses made through the Website are processed using a secure https:// connection, and payment processing is handled through the online payment processor PayPal.
PayPal currently accepts Visa, MasterCard, American Express and a PayPal account as payment options, but this is subject to change without notice, and may vary depending on your country of origin. Once transactions are accepted by PayPal, they are processed in accordance with PayPal’s program rules and procedures and Terms of Use. Blue Ant Media and PayPal are unaffiliated companies and Blue Ant Media has no influence on the operations of PayPal. Blue Ant Media and its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of PayPal.
b. Prices and Taxes
All prices of Courses are firm and in U.S. dollars that may be converted to other currencies by PayPal at the time of payment processing, depending on your country of origin and / or credit card account agreement. Prices displayed are subject to change without notice. Prices includes all applicable taxes. If you have a valid coupon or discount code, it shall be applied and displayed during the checkout process.
In the event that a Course is mistakenly listed at an incorrect price or an incorrect discount is applied, Blue Ant Media reserves the right to cancel any orders placed listed at the incorrect price or at an incorrect discount. If the Customer has already been charged for the purchase and the order is cancelled, Blue Ant Media shall issue a credit to the credit card or other payment method used to make the purchase in the amount of the incorrect price.
c. Refund Policy
When you make a purchase of a Course on the Website, all sales are final and non-refundable. If there is a technical problem with the Course you purchased, please contact us at [email protected] and we will attempt to resolve the issue. In the event that that the issue cannot be fixed, we will refund your payment to the same credit card or other payment method used to make the purchase. Refund processing will occur within 3-5 business days.
5. Copyright and Intellectual Property Rights
The content, arrangement and layout of the Website, including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and computer code are proprietary to (whether by copyright or other intellectual property right) Blue Ant Media, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, broadcast, decompiled or otherwise used without the express written permission of Blue Ant Media. Any unauthorized use of the content, arrangement or layout of the Website, computer code, images, logos, videos, audio or trademarks found in the Website or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws and treaties, and Blue Ant Media may take action accordingly.
The above paragraph further applies to third party property used as part of the Website, including but not limited to third party computer code. For the purposes of the present section, “computer code” includes source code, frameworks, CSS or JavaScript files, templates, modules, or any similar files.
Blue Ant Media is always improving its websites and services and developing new features. If you have ideas and/or suggestions regarding improvements or additions to the Website, we would like to hear them - but any submission will be subject to these TOU. If you choose to communicate to Blue Ant Media suggestions for improvements to the Website or any service available on the Website (collectively, “Feedback”), Blue Ant Media shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to Blue Ant Media and waive in favor of Blue Ant Media, its successors and assigns all your moral rights in the Feedback, and agree to provide Blue Ant Media such assistance as Blue Ant Media may require to document, perfect, and maintain Blue Ant Media’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to Blue Ant Media, you are not entitled to any compensation or reimbursement of any kind from Blue Ant Media under any circumstances.
6. Responsibility for Minors
In cases where you have authorized a minor under the age of 18 to use the Website and / or purchase a Course, you recognize that you are fully responsible for: (a) the online conduct of such minor; (b) controlling the minor's access to and use of the Website; and (c) the consequences of any misuse by the minor. You acknowledge that some of the areas of the Website including Courses may contain material that is inappropriate for minors.
7. External Links
From time to time Blue Ant Media may provide links to other websites or services. Links from the Website may take you to websites or services not covered by these TOU. When you access third party resources on the Internet in this manner, you do so at your own risk. Blue Ant Media provide those links as a convenience to you and Blue Ant Media takes no responsibility for your use of those other websites or services or protection of your privacy (including collection of your personal information) on those other websites or services. We encourage you to check the Terms of Use and / or Privacy Policy of any website or service you visit. Blue Ant Media does not make any claim or warranty whatsoever about the content of those websites or services to which we link, or any products or services available through those websites or the third parties operating those websites.
In no way will Blue Ant Media be held responsible for any damages, direct or indirect, pecuniary or non-pecuniary: (1) for your use of websites or other services that may be linked to from the Website or the information thereon; (2) for any virus, Trojan horse, worm or other similar destructive file received as a result of your use of those websites or services; (3) caused by or in connection with, use of or reliance on any content, or products or services (whether free or for purchase) available on or through any linked-to website or service; or (4) for the actions of the operators of any such website or service.
8. Interruption of Service
From time to time, the Website may be unavailable for periods of time for maintenance and / or modifications to the Website. While we will endeavour to make this unavailability as brief as possible, Blue Ant Media shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Website, and disclaims any responsibility thereto.
9. Termination of the Website or Your Access to the Website and the TOU
You agree that Blue Ant Media, in their sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, revoke your account credentials, or otherwise terminate your access to or use of the Website (or any part thereof), immediately and without notice, for any reason, including, without limitation, if Blue Ant Media believes that you have acted inconsistently with the letter or spirit of the TOU or the Privacy Policy.
Blue Ant Media may also, in their sole discretion and at any time, discontinue providing the Website, or any part thereof, with or without notice. You agree that Blue Ant Media shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Website, or from Blue Ant Media’s termination of the Website or any part thereof.
You may also choose to terminate your access to the Website by cancelling your account. If you wish to cancel your account, please contact us at [email protected].
Termination of the Website or your access thereto shall not entitle you to any refund whether in whole or in part of any payments made for the purchase of Courses.
Termination of the Website or your access to the Website shall terminate the present TOU as between you and Blue Ant Media. All provisions of these TOU which by their nature should survive termination of these TOU shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
10. Disclaimers and Disclaimer of Warranties
You expressly understand and agree that your use of the Website, the information thereon (whether provided by Blue Ant Media or third parties) or any activity arising from your use of the Website or the information thereon or the materials downloaded therefrom is at your sole risk. The Website, any materials downloaded therefrom, or any third party materials, are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Website or any other functionalities of the Website, or losses or damages (financial or otherwise) resulting from your use of the Website, the information thereon, any materials downloaded therefrom, or any activity arising from the use of the Website, the information thereon or any materials downloaded therefrom.
The information or resources provided through the Website, written or produced by Blue Ant Media staff, freelance writers or other subcontractors hired by Blue Ant Media are expected to be as accurate as possible at the time of writing or production, and every effort has been made to ensure that the information from the Website is as accurate and up-to-date as possible. However, certain information may change, and errors or omissions may occur, and Blue Ant Media shall not be responsible for any loss or damage, financial or otherwise, resulting from changes or errors in information, or any omission, on the Website or the information thereon.
Blue Ant Media expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Website, the information thereon or any materials downloaded therefrom, and any third party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. Blue Ant Media, its affiliates and their respective Representatives, do not warrant that: (i) the Website will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content (whether provided by Blue Ant Media or third parties) available at or through the Website is free of viruses or other harmful components; or (iv) the results of using the Website or any content downloaded will meet your requirements.
For the purposes of the present section and the next sections on Limitation of Liability and Indemnification, “information” shall include any information in whatever form contained in the Courses, and “materials downloaded” shall include streaming videos as part of the Courses.
Without limiting the generality of the other disclaimers in this section, Blue Ant Media shall in no way be held responsible for any damages, direct or indirect, financial or otherwise, arising from your participating in the activities explained in the Courses. Some courses may involve use of tools or other items that may be dangerous if improperly used, and we encourage you to use caution and standard safety procedures when participating in the activities outlined in the Courses.
11. Limitation Of Liability
IN NO CASE WILL BLUE ANT MEDIA, ITS SUBSIDIARIES OR ITS AFFILIATES, OR THEIR RESPECTIVE REPRESENTATIVES OR LICENSEES BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES OR OTHER DAMAGES, OR FOR ANY LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES ARISING OUT OF OR RELATING TO (I) YOUR ACCESS, USE, MISUSE OR INABILITY TO ACCESS OR USE THE WEBSITE OR (II) THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY PART OF OR ALL THE WEBSITE; AND IN BOTH CASES (I) AND (II) REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, WARRANTY, DELICT, QUASI-DELICT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BLUE ANT MEDIA, ITS AFFILIATES, OR THEIR RESPECTIVE REPRESENTATIVES OR LICENSEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, GENERAL CIVIL LIABILITY OR ANY OTHER CAUSE OF ACTION UNDER LEGAL OR EQUITABLE THEORY, RELATING TO THE WEBSITE, THE INFORMATION ON THE WEBSITE, THE USE OF THE WEBSITE, ACTIVITIES ARISING FROM YOUR USE OF THE WEBSITE, COURSES PURCHASED ON THE WEBSITE, ANY THIRD PARTY MATERIALS ON THE WEBSITE, OR ANY MATERIALS DOWNLOADED FROM THE WEBSITE. THIS LIMITATION OF LIABILITY APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY CAUSED BY ANY ERROR, OMISSION OR OTHER FAILURE OF PERFORMANCE BY BLUE ANT MEDIA, ITS AFFILIATES, BUSINESS PARTNERS, AGENTS OR OTHER SUBCONTRACTORS; ANY INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, INCLUDING COMMUNICATION LINE FAILURE; ANY COMPUTER VIRUS; AND ANY THEFT, DESTRUCTION OR ALTERATION OF, OR UNAUTHORIZED ACCESS TO OR USE OF, ANY ELECTRONIC RECORDS.
You expressly acknowledge that Blue Ant Media has entered into this agreement, and has made or may make the Website or any future additions thereto available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth herein, and that the same form an essential basis of the bargain between you and Blue Ant Media. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of these TOU.
12. Indemnification
Notwithstanding any other term of the TOU or any act or failure to act by Blue Ant Media or its agents or subcontractors, you agree to indemnify, defend and hold harmless Blue Ant Media, its subsidiaries, affiliates and their respective Representatives where applicable, from and against any damages, liabilities, costs and expenses (including attorneys’ fees), claims or demands, arising out of (i) your use of, connection to, reliance on, publication of, communication of or distribution of the Website, the information thereon, the information downloaded therefrom, or Course(s) purchased therefrom; (ii) your participation in any activities arising from the Website or the information thereon or materials downloaded therefrom; (iii) your violation of, or failure to perform your obligations under the TOU or the Privacy Policy; or (iv) your violation of any rights of a third party. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
13. Governing Law and Applicable Jurisdiction
The Website is controlled, operated and administered by Blue Ant Media from its offices within Canada, with support from certain third party providers in the United States. Blue Ant Media makes no representation or warranty that the Website is appropriate or available for use at any locations outside Canada. If you access the Website from outside Canada, you are responsible for compliance with all applicable laws. You may not export any of the information on the Website in violation of applicable export laws and regulations.
These TOU shall be interpreted, construed and governed by the laws in force in the Province of Ontario, Canada, without reference to its conflict of laws principles. Each party hereby agrees to submit to the jurisdiction of the courts of the Province of Ontario and to waive any objections based upon venue. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOU. Notwithstanding the foregoing, Blue Ant Media shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are located: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you where a judgment by the Ontario court will, or may not be, enforced by the jurisdiction in which you reside or are located; or (iii) to enforce a judgment obtained against you in the Ontario court.
14. Legal Compliance and Monitoring
Blue Ant Media reserves the right, without any limitation whatsoever, to: (i) investigate any suspected breaches of the Website security or its information technology or other systems or networks; (ii) investigate any suspected breaches of the TOU or violations of any additional terms, conditions or rules posted in connection with a particular service or feature on the Website; (iii) involve and cooperate with law enforcement authorities in investigating any such matters; and (iv) prosecute violators of the TOU to the full extent permitted by applicable law.
You acknowledge that Blue Ant Media has no obligation to monitor the Website or any content accessible through the Website. However, you agree that Blue Ant Media has the right to monitor the Website electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the Website properly, or to protect itself or its users and Customers in accordance with the Privacy Policy.
15. Miscellaneous Provisions
(i)This agreement is personal to you, and you may not assign your rights or obligations to anyone.
(ii)The TOU, in conjunction with the Privacy Policy, constitute the entire agreement between you and Blue Ant Media with respect to your use of the Website or purchase of Courses on the Website (as applicable), superseding any prior agreements between you and Blue Ant Media with respect to the subject matter hereof.
(iii)Blue Ant Media shall not be liable for any failure to perform its obligations under the present TOU where such failure results from any cause beyond Blue Ant Media’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation.
(iv)If any provision of the TOU or Privacy Policy is found by a court of competent jurisdiction to be invalid, you and Blue Ant Media nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU or Privacy Policy, as the case may be, shall remain in full force and effect.
(v)The failure of Blue Ant Media to exercise or enforce any right or provision of these TOU does not constitute a waiver of such right or provision, which will still be available to Blue Ant Media.
(vi)The section titles in the TOU and Privacy Policy are for convenience only and have no legal or contractual effect.
(i) The parties have required that these TOU and all documents relating
thereto be drawn up in English. Les parties ont demandé que cette convention
ainsi que tous les documents que s'y rattachent soient rédigés en anglais.
© Blue Ant Media 2016