Terms & Conditions

These Terms of Service (“Terms of Service” or “Terms”) set forth the legally binding terms between MARTKD INC. d/b/a MARTKD, a New York Corporation (“MARTKD,” “we,” “us,” “our”), and the User (“User(s),” “you,” “your”) that govern your application and participation located at https://www.martkd.com/ or any other MARTKD website that references these Terms (“Site(s)”), (collectively referred to herein as the “Program”). The Program is a platform and creative agency that uses “Art” as a community engagement tool to connect, empower and provide accessible programs for communities to showcase their creative and artistic talents.  Users include artists (“Artist(s)”) and anyone else who applies for and participates in the Program. By applying to and/or participating in the Program or clicking the button marker ‘Apply Now” or checking a box marked “I Agree” or something similar, you agree you have read, understand and will be bound by these Terms and any other terms, conditions and agreements referenced in these Terms, including without limitation the MARTKD Privacy Policy (collectively, the “Agreement”).

THIS IS A LEGAL CONTRACT.  PLEASE READ THESE TERMS CAREFULLY.  BY APPLYING OR PARTICIPATING IN THE PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS, AS WELL AS ANY AND ALL OTHER AGREEMENTS EXPRESSLY INCORPORATED BY REFERENCE (INCLUDING OUR PRIVACY POLICY), AND ANY ALL POLICIES OR LEGAL NOTICES WE PUBLISH OR PROVIDE REGARDING THE PROGRAM.

THESE TERMS REQUIRE THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE ALL DISPUTES ARISING UNDER THEM, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

THE  IS NOT AVAILABLE WHERE PROHIBITED OR LIMITED BY APPLICABLE LAWS.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PARTICIPATE IN THE PROGRAM..

TABLE OF CONTENTS

  • Eligibility.
  1. Application.
  2. Participation Grant.
  3. Participation Restrictions.
  4. Community Guidelines.
  5. Privacy.
  6. Security.
  7. Accuracy and Completeness of Information.
  8. Telephone Calls.
  9. Social Media Applications; Other Third-Party Applications.
  10. Participant Responsibilities.
  11. Intellectual Property.
  12. Term; Termination; Modifications; Suspension; Discontinuation.
  13. User Submissions.
  14. Copyright Policy.
  15. Feedback.
  16. Changes to the Terms of Service.
  17. Disclaimer; No Warranty.
  18. Limitation of Liability.
  19. Indemnification.
  20. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
  21. Miscellaneous.
  1. Eligibility

To enter, participants must be a Canadian citizen between the ages of 19-24 years old. By applying to participate, you represent and warrant that: (i) you fall in the age category of 19 – 24  years of age and otherwise have capacity to contract; (ii)  and that your application and participation is in compliance with any and all applicable laws and regulations. The Program is controlled and offered by MARTKD from the United States for participation in Canada. MARTKD makes no representations that the program is appropriate or available for use in other locations.

 

  1. Application

You agree that all information you provide to apply for the Program, through the Service or otherwise, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

By providing MARTKD your email address you consent to our using the email address to send you Program-related notices, including any notices required by law, in addition to communication by postal mail to receive participation materials. We may also use your email address to send you other messages, such as changes to features of the Program and special offers. If you do not want to receive such email messages, you may opt out or change your preferences after program participation. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.

  1. Participation Grant

Subject to these Terms, MARTKD grants to you a limited, non-exclusive, non-transferable, non‑sublicensable, revocable, restricted license to participate and use the Program for your personal promotion, noncommercial use only and as permitted by the features of the Program, including to (i) participate in the Program during the term of that Program; (ii) browse or otherwise access information about the Program; (iii)  and submit information requested or required to apply. MARTKD reserves all rights not expressly granted herein in the Program and the MARTKD Content (as defined below).  MARTKD may revoke your participation in the Program at any time for any reason or no reason.

  1. Participation Restrictions.

You hereby represent, warrant, and agree that you will:  (i) use the Program solely for personal, non‑commercial use in accordance with Section 3 (Participation Grant) above; and (ii) not use the Program to (a) rent, lease, sublicense, sell, transfer, assign, redistribute, host, or otherwise commercially exploit the Program, or any part thereof; (b) modify, make derivative works of, attempt to duplicate, or reverse engineer any part of the Program; (c) participate in the Program in order to build a similar or competitive program; (d) except as expressly stated herein, copy, reproduce, distribute, republish, download, post, display or transmit any part of the Program; (e) infringe or violate the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (f) violate any law, statute, ordinance, or regulation, including, but not limited to, applicable export and re-export control laws and regulations; or (g) execute any processes that interferes with the proper working of Program. Use of the Program is void where prohibited.

  1. Community Guidelines.

MARTKD Users agree that there are risks when dealing with other Participants, and MARTKD is not liable for these risks. In addition, you agree not to use the Program to:

  • upload, post, email, transmit, create or otherwise make available any content that MARTKD deems to be harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
  • upload, post, email, transmit, create or otherwise make available any Content that User does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • publish or transmit any illegal material, or any material that infringes or violates another person’s rights (including intellectual property rights, and rights of privacy and publicity);
  • impersonate any person or entity, create a false identity, or falsely state or otherwise misrepresent User’s self or User’s affiliation with any person or entity;
  • upload, post, email, transmit, create or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation;
  • intimidate, stalk or harass another;
  • harm minors in any way
  1. Privacy

We respect your privacy and are committed to protecting it. Our Privacy Policy governs the processing of all personal information collected from you in connection with your participation in the Program (including any personal information obtained through a third-party social-media application, “Social Media Application”).  Please carefully review our Privacy Policy to learn about how we collect and use your personal information before applying to the Program..

We do not knowingly collect or solicit personal information from anyone under the age of 19 or knowingly allow such persons to apply and participate in the Program.  If you believe that we might have any personal information from or about a youth under 19, please contact us at martkd@martkd.com.

  1. Security.

MARTKD cares about the integrity and security of your personal information.  However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes.  You acknowledge that you provide your personal information at your own risk.

  1. Accuracy and Completeness of Information.

MARTKD is not responsible for any harm or damage that may occur if information made available on or through the Program by MARTKD or by any Participants or any other person or entity (including certain information or other content from third parties), is not accurate, reliable, effective, complete, or current, and we make no endorsement, representation, warranty, or guarantee of any kind about any such content, information, services, communications, or recommendations.  WE DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT ANY SERVICE PROVIDER, STUDENT OR OTHER PERSON OR ENTITY CONTRIBUTING TO THE MARTKD PROGRAM IS PRESENTING ACCURATE OR COMPLETE INFORMATION THROUGH THE MARTKD PROGRAM OR OTHERWISE.  WE DO NOT INDEPENDENTLY VERIFY OR ATTEMPT TO CONFIRM ANY INFORMATION THEY PROVIDE.

  1. Telephone Calls.

You expressly consent and agree that MARTKD may contact you using written, electronic, or verbal means, including by manual dialing, emails, leaving prerecorded/artificial voice messages or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you, communicate with you about participation details, and as the law allows, even if those phone numbers are registered by you on any federal or state Do-Not-Call/Do-Not-email registry.

  1. Social Media Applications; Other Third-Party Applications.

You understand and agree that any Social Media Application’s use of information collected from you is governed by each Social Media Application’s privacy policies, terms of service, and your settings on each third-party site or service.

The Program may contain links to other third-party sites and services, and use functionality from third-party sites or services, including from the Social Media Applications, all of which MARTKD does not control or maintain.  We are not responsible for the privacy practices, terms, conditions or any other activities of any third-party site or service.  If you access a third-party website or service from the Program or share your User Submissions on or through any third-party website or service, you do so at your own risk, and you understand that these Terms and MARTKD’s Privacy Policy do not apply to your use of such sites.  You expressly relieve MARTKD from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Submissions submitted by other Users.

  1. Participant Responsibilities.

You acknowledge and agree that you are solely responsible for:  (i) making all arrangements necessary to participate in the Program, including, as applicable, ensuring your computer and/or supported mobile device includes adequate software or internet connectivity; (ii) any and all costs, including but not limited to, internet or mobile data costs, you may incur while accessing and participating in the Program; (iii) any costs or liabilities arising from, associated with, or relating to your use of the Service; (iv) ensuring that your use of the Program does not violate any third-party trademarks or other intellectual property; (v) by submitting information to MARTKD that you are solely responsible for the form and Content you submit to the Program and all information included in your application and that all such information (including Content) is true and accurate.

  1. Intellectual Property.

Except for your User Submissions (defined below), the Program and all materials therein or transferred thereby, including, without limitation, tangible assets, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Submissions belonging to other Users (the “MARTKD Content”), and all Intellectual Property Rights (defined below) related thereto, are the exclusive property of MARTKD and its licensors (including other Users who post User Submissions for the Program).  Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any MARTKD Content.  Use of the MARTKD Content for any purpose not expressly permitted by these Terms is strictly prohibited.

For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

  1. Term; Termination; Modifications; Suspension; Discontinuation.

These Terms will be effective on the first day that you apply and/or initiate participation in the Program and will remain in full force and effect so long as you continue to participate in the Program, unless terminated as set forth in this Section.  MARTKD may terminate your participation under Section 3 (License Grant) at any time, without notice, in its sole discretion, for your failure to abide by these Terms, any and all other agreements expressly incorporated by reference (including our Privacy Policy), and any and all other policies or legal notices we publish by regarding the Program.  Any provision of this Agreement that contemplates or governs performance or observance subsequent to termination or expiration of this Agreement will survive the expiration or termination of this Agreement for any reason and remain in effect until fulfilled and apply to respective successors and permitted assigns.  MARTKD reserves the right, at any time, to modify, suspend, or discontinue the Program, or any part thereof, in its sole discretion with or without notice to you.  You agree that MARTKD will not be liable to you or to any third party for any termination, modification, suspension, or discontinuance of the Program, or any part thereof.

  1. User Submissions.

Some areas of the Program allow Participants to submit, post, display, provide, or otherwise make available content such as participant information, designs, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Submissions”).

EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE CLAIM NO OWNERSHIP RIGHTS OVER USER SUBMISSIONS CREATED BY YOU.  THE USER SUBMISSIONS YOU CREATE REMAINS YOURS.  However, you understand that certain portions of the Service may allow other Users to view, edit, share, and/or otherwise interact with your User Submissions.  By providing or sharing User Submissions through the Service, you agree to allow others to view, edit, share, and/or interact with your User Submissions in accordance with your settings and these Terms. MARTKD has the right (but not the obligation) in its sole discretion to remove any User Submissions that is shared via the Program.

By submitting, posting, displaying, providing, or otherwise making available any User Submissions on or throughout the Program, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to MARTKD a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Participant Submissions and your name, voice, and/or likeness as contained in your User Submissions, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Program and MARTKD’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Program (and derivative works thereof) in any media formats and through any media channels.  You also hereby grant each Participant of the Program a non-exclusive license to access your Participant Submissions through the Program, and to use, reproduce, distribute, display and perform such Participant Submissions as permitted through the functionality of the Service and under these Terms.

In connection with your Participant Submissions, you affirm, represent and warrant the following:

  • You have the written consent of each and every identifiable natural person in the Participant Submissions, if any, to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use.
  • You have obtained and are solely responsible for obtaining all consents as may be required by law to post any Participants Submissions relating to third parties.
  • Your Participant Submissions and MARTKD’s use thereof as contemplated by these Terms and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
  • MARTKD may exercise the rights to your Participant Submissions granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
  • To the best of your knowledge, all your Participant Submissions and other information that you provide to us is truthful and accurate.

MARTKD takes no responsibility and assumes no liability for any Participants Submissions that you or any other Participant or third party posts, sends, or otherwise makes available over the Program.  You shall be solely responsible for your Participant Submissions and the consequences of posting, publishing it, sharing it, or otherwise making it available in the Program, and you agree that we are only acting as a passive conduit for your online distribution and publication of your Participant Submissions.  You understand and agree that you may be exposed to Participant Submissions that are inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that MARTKD shall not be liable for any damages you allege to incur as a result of or relating to any Participant Submissions.

 

 

  1. Copyright Policy.

Since we respect artist and content owner rights, it is MARTKD’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify MARTKD’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:

  1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
  2. Identification of the copyrighted work that you claim has been infringed;
  3. Identification of the material that is claimed to be infringing and where it is located on the Program;
  4. Information reasonably sufficient to permit MARTKD to contact you, such as your address, telephone number, and, e-mail address;
  5. 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 law; and
  6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying MARTKD and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with MARTKD’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

 

  1. Feedback.

 In accordance with the DMCA and other applicable law, MARTKD has adopted a policy of terminating, in appropriate circumstances, Participants who are deemed to be repeat infringers. MARTKD may also at its sole discretion limit access to the Program and/or terminate participation of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. 

You may choose to, or we may invite you to, submit comments, suggestions, or ideas about the Program, including how to improve the Program (“Feedback”).  By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction, and will not place Yellowbrick under any fiduciary or other obligation.  If you provide us Feedback or contact us via e‑mail, we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply.  Users acknowledge and agree that any questions, comments, suggestions, ideas, Feedback or other information about the Program provided by Participants to MARTKD are non-confidential and MARTKD will be entitled to their unrestricted use and dissemination for any purpose, commercial or otherwise, without acknowledgment or compensation to Participants.

 

 

  1. Changes to the Terms of Service.

MARTKD may update these Terms from time to time.  When we do, we will revise the “last updated” date at the top of these Terms.  MARTKD is not responsible for notifying you of changes to these Terms.  You are responsible for checking these Terms, including our Privacy Policy and all other documents incorporated by reference, for updates periodically.  For changes to these Terms that we deem to be material, we will endeavor to place a prominent notice on the home page of the Program regarding such changes.  If at any time you do not agree to these Terms, please do not access or use the Program.

  1. Disclaimer; No Warranty.

The Program is provided on an “as is” and “as available” basis.  Participation in the Program is at your own risk.  To the maximum extent permitted by applicable law, the Program is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement.  No advice or information, whether oral or written, obtained by you from MARTKD or through the Program will create any warranty not expressly stated herein.  Without limiting the foregoing, MARTKD, its subsidiaries, its affiliates, and its licensors do not warrant that the MARTKD content or service is accurate, reliable or correct; that the MARTKD content or the Program will meet your requirements. If the Program provides professional information for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Program. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

Further, MARTKD does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or service, and MARTKD will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.

Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you.  These Terms give you specific legal rights, and you may also have other rights which vary from state to state.  The disclaimers and exclusions under these Terms will not apply to the extent prohibited by applicable law.

19.Limitation of Liability.

To the maximum extent permitted by applicable law, in no event shall MARTKD, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Program.  Under no circumstances will MARTKD be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Program or your account or the information contained therein.

To the maximum extent permitted by applicable law, MARTKD assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your participation in our program; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from the Program; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Program; and/or (vii) Participant Content or the defamatory, offensive, or illegal conduct of any third party.  In no event shall MARTKD, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs.

This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Yellowbrick has been advised of the possibility of such damage.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.  These Terms gives you specific legal rights, and you may also have other rights which vary from state to state.  The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law.

  1. Indemnification.

You agree to defend, indemnify and hold harmless MARTKD and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:  (i) your participation of the Program, including any data or content transmitted or received by you and any interaction among other Participants; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) Participant Submissions or any content that is submitted  including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Program.

  1. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.
  • Governing Law. You agree that:  (i) the Program shall be deemed solely based in New York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York.  These Terms shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles.  The parties acknowledge that these Terms evidence a transaction involving interstate commerce.  Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  You agree to submit to the personal jurisdiction of the federal and state courts located New York, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm.  You agree that New York, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
  • Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM YELLOWBRICK.  For any dispute with MARTKD, you agree to first contact us at martkd@martkd.com and attempt to resolve the dispute with us informally.  In the unlikely event that MARTKD has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims“), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein.  JAMS may be contacted at www.jamsadr.com.  The arbitration will be conducted in New York, New York unless you and Yellowbrick agree otherwise.  If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses.  If you are an individual using the Service for non-commercial purposes:  (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Nothing in this Section shall be deemed as preventing Yellowbrick from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
  • Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING.  THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS.  YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND YELLOWBRICK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

 

 

  1. Miscellaneous.
  • Force Majeure. MARTKD will not be liable or responsible to you to the extent any failure or delay is caused by or results from acts or circumstances beyond MARTKD’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers, manufacturers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  • No Assignment. These Terms, and all rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by MARTKD without restriction.  Any attempted assignment by you will be null and void.
  • No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
  • Notices. We may provide any notice to you under these Terms by posting to the website(s) hosting the Service.  Notices we post will be effective on the day we post.  To give us notice under these Terms, you must contact us as follows, with a copy to martkd@martkd.com

MARTKD INC. d/b/a MARTKD

1243 President St, 2nd Floor, Brooklyn, NY, 11225

Any such notice may be served personally or by certified mail (postage prepaid), internationally commercially recognized overnight delivery service (such as Federal Express or DHL), or courier.  Notice shall be deemed served upon personal delivery or delivery by courier, upon the second business day after the date sent for notices sent via overnight delivery, or upon the fifth business day after the date sent for notices sent via certified mail.  Either party may change the address to which notices are to be delivered by written notice (excluding email) to the other Party. 

  • Entire Agreement; Severability; No Waiver. These Terms, as well as any and all other agreements expressly incorporated by reference (including our Privacy Policy), and any and all other policies or legal notices we publish regarding the Service constitute the entire agreement between you and Yellowbrick concerning your use of the Service.  If any provision of these Terms is deemed invalid, unenforceable or void by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect.  No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and MARTKD’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.  The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of MARTKD.

© Copyright 2022 MARTKD, Inc.  All rights reserved.