PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.
In consideration of Your use of any of the Makeplus Services (defined below) provided by Makeplus LLC, Makeplus requires that You (“Maker,” “You,” or “Your”) (acting for all of Maker’s family, heirs, agents, affiliates, representatives, successors, and assigns) agree to all terms and conditions in this Makeplus Rental Agreement, Waiver of Liability and Release (“Agreement”).
The services provided by Makeplus include, among other things, (1) Makeplus mobile application (“Makeplus App”) and related website, (2) Makeplus stationary and portable power tools as well as handheld tools (“Tool” or “Tools”), (3) Makeplus Shop, and (4) all other related equipment, personnel, services, applications, websites, and information provided or made available by Makeplus (collectively, the “Makeplus Services”).
In addition to the Terms of Service, located at makeplus.us/terms-of-service, You expressly agreed to when you signed up for Makeplus, You should CAREFULLY READ all terms and conditions before entering into this Agreement. Here is a partial list of some of the terms that Makeplus wants to bring to Your initial attention in the event You are on a smartphone or other device with a small screen. Capitalized terms have the meanings given to them where defined in this Agreement.
THIS AGREEMENT CONTAINS RELEASES, DISCLAIMERS, ASSUMPTION-OF-RISK PROVISIONS, AND A BINDING ARBITRATION AGREEMENT THAT MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES. FOR MORE DETAILS, PLEASE REFER TO SECTIONS 9 AND 15 BELOW
You must end your fabrication-session on the workspace exit terminal at the conclusion of the fabrication-session. If you fail to do so, You will continue to be charged. The maximum charge for a single fabrication-session under such circumstances is $168 for 8 hours. For more details, please refer to Section 2.3 below.
Upon conclusion of Your fabrication-session, the Tool(s) used must be left in a clean condition, and stowed in the specified location (if applicable). Maker is not permitted to leave any Tools(s) in a prohibited spot, i.e. blocking the right of way, or in any other unapproved space.
Maker must comply with all applicable safety regulations (including, without limitation, to protective wear, handling of Tools, precautions against mechanical emissions or hazards and solutions), including any PPE (Personal Protective Equipment) regulations.
You must promptly report any damaged or malfunctioning Tools to Makeplus in person, via the Makeplus App, or e-mail.
Makeplus expressly agrees to let, and the Maker expressly agrees to take on, rental of the Tool subject to the terms and conditions set out herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in United States dollars.
1. GENERAL RENTAL AND USE OF TOOL.
1.1 Maker is Sole User. Makeplus and the Maker are the only parties to this Agreement. The Maker is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You access any of our work-spaces, the Tool(s) must be used only by You. You must not allow others to use a Tool in the workspace You have accessed.
1.2 Maker is At Least 18 Years Old. Maker represents and certifies that Maker is at least 18 years old.
1.3 Maker is a Competent Tool Operator. Maker represents and certifies that he/she is familiar with the operation of the Tool, is reasonably competent and physically fit to operate the Tool, and has reviewed the safety materials provided by Makeplus at the Shop and made available on the Makeplus website. By choosing to operate a Tool, Maker assumes all responsibilities and risks for any injuries or medical conditions. You are responsible for determining visible Tool conditions, including, without limitation to debris or damage, that make it dangerous to operate a Tool. You are advised, and held responsible, to inspect and readjust (if applicable) a Tool in order to suit your capabilities.
1.4 Tool is the Exclusive Property of Makeplus. Maker agrees that the Tool and any Makeplus equipment attached thereto, at all times, remain the exclusive property of Makeplus. You must not dismantle, write on, or otherwise modify, repair or deface a Tool, any part of a Tool, or other Makeplus equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a Tool in any way. You must not use a Tool, or other Makeplus equipment, for any advertising or other commercial purposes without the express written permission of Makeplus.
1.5 Tool Operating Hours and Tool Availability. Maker agrees and acknowledges that the Tools are not available 24 hours a day, 7 days/week, 365 days per year. Tools must be rented during operating hours and within the maximum rental time limits set forth below. The number of Tools are limited and Tool availability is never guaranteed. Maker agrees that Makeplus may require Maker to cease the operation of a Tool at any time.
1.6 Operating Area. Maker agrees not to use and/or operate a Tool outside the Tool’s designated workspace and further agrees not to transport the Tool outside of the Makeplus Shop.
1.7 Maker Must Follow Safety Regulations Regarding Use and/or Operation of Tool. Maker agrees to follow all laws pertaining to the use, operating, handling, adjustment, and/or placement of the Tool, including all state and local laws and the rules and regulations pertaining to Tool Operation, including any PPE rules and regulations set by the Occupational Safety and Health Administration (OSHA). Maker also agrees to act with courtesy and respect toward others while using the Makeplus Services.
1.8 Prohibited Acts. Maker agrees to the following:
Makeplus prohibits the operation of a Tool while carrying or holding a briefcase, backpack, bag, or other item that can alter balance, add extra weight, or impair safe operation of the Tool.
You must not place or hang any objects on the Tool, such as backpacks or bags.
While operating a Tool, You must not use any cellular telephone, text messaging device, portable music player, or other device that may distract You from operating the Tool safely.
You must not operate a Tool while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to operate a Tool safely.
You must not interact with another Maker while You or he/she is operating a Tool.
You may only access a workspace through the designated entry terminal. Any alternative access points are prohibited unless stated otherwise by Makeplus.
Upon conclusion of Your fabrication-session, Tool(s) used must be left in a clean condition, and stowed in the specified location (if applicable), i.e. remove all leftover materials and verify there is nothing left that may impair operation by the next Maker. Maker is not permitted to leave any Tools(s) in a prohibited spot, i.e. blocking the right of way, or in any other unapproved space. You should not place the Tool in any way that may (a) endanger another Maker and (b) create a potential of the Tool being damaged.
The Tool must be turned off after use.
1.9 Tool is Intended for Only Limited Types of Use. Maker agrees that he/she will not use the Tool which is designated for a certain material with another material than what it was intended for. Maker agrees that he/she will not operate and/or use the Tool in any way other than what is permitted by Makeplus.
1.10 No Tampering; No Unauthorized Use. You must not tamper with, attempt to gain unauthorized access to, or otherwise use the Makeplus Services other than as specified in this Agreement.
1.11 Reporting of Damage or Injury. Maker must report any accident, damage, personal injury, or stolen or lost Tool to Makeplus as soon as possible. If an incident involves personal injury, property damage, or a stolen Tool, Maker shall file a report with the local police department within 24 hours. Maker agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost Tool.
Maker agrees and acknowledges that Makeplus may cooperate with law enforcement to provide any information necessary as they may request or may otherwise be required.
1.12 Maker Responsibility for Tool Use and Damage. Maker agrees to return the Tool to Makeplus in the same condition in which it was rented. Maker will not be responsible for normal wear and tear.
1.13 Stationary and Portable Tools. A portable or stationary power Tool is a device powered by an additional source and mechanism other than manual labor. The Tool(s) require periodic maintenance, including but not limited to, blade replacements, charging, and lubrication in order to operate at full capacity. Maker agrees to use and operate the Tool safely and prudently in light of the Tool being a power Tool and all of the limitations and requirements associated therewith. Maker understands and agrees with each of the following:
The level of sharpness remaining in the Tool will decrease with use of the Tool over time, and that as the level of sharpness of the Tool decreases, the operational capabilities of the Tool may also decrease (or cease in their entirety).
The level of charging power (if applicable) in the Tool at the time Maker initiates the rental or operation of the Tool is not guaranteed and will vary with each rental use. As the level of charge power of the Tool decreases, the speed and other operational capabilities of the Tool may also decrease (or cease in their entirety).
The rate of loss of charging power as well as cutting accuracy and efficiency during the use of the Tool is not guaranteed and will vary based on the Tool, material, intended use of the Tool, and other factors.
It is Maker’s responsibility to check the level of charge power, sharpness of the blade(s) in the Tool and to ensure that it is in an adequate operation condition before initiating operation of the Tool.
The time that a Maker may operate the Tool before it loses charging power (if applicable) is never guaranteed.
The Tool may run out of charging power and cease to operate at any time during Maker’s rental of the Tool, including before reaching Maker’s desired outcome.
Maker agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, property or fire or other damages, injuries, costs, and expenses, penalties, attorney’s fees, judgments, suits, or disbursements of any kind or nature whatsoever related to Maker operating or attempting to operate the Tool. By choosing to operate a Tool, Maker assumes full and complete responsibility for all related risks, dangers, and hazards, and Maker agrees that Makeplus and all other Released Persons (defined below in Section 15) are not responsible for any injury, damage, or cost caused by Maker with respect to any person or property, including the Tool itself, directly or indirectly related to the operating of the Tool.
1.14 Mobile Device Requirements and Active Internet Connection. Unless otherwise instructed by Makeplus in writing, to activate Makeplus Services with the Makeplus App, You must use a smartphone or any other (mobile) device that meets the technical requirements for and is compatible with the Makeplus App. Certain functions of the Makeplus App, such as the possibility to register with Makeplus, to access, begin and end a fabrication-session, require that the Makeplus App has an active network connection. You are responsible for the availability and costs of Your mobile data communication services. You are also responsible for ensuring that Your mobile device has adequate battery capacity. Makeplus shall not be responsible if You are unable to unlock, use or end the fabrication-session of the Tool as a result of lost or interrupted network connection, mobile device malfunction, or depleted battery. You shall remain responsible for and Makeplus may charge You all costs (including rental fees) incurred until the fabrication-session is ended.
2. PAYMENT AND FEES.
2.1 Fees. Maker may access the workspaces to use the Tools in accordance with the pricing described in the Makeplus App and/or at the Makeplus Shop, which may include a fabrication-session start fee, fees based on sq/ft or time (with time rounded up to the nearest minute), and/or a required minimum fee. Pricing is subject to change. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by Makeplus. Makeplus will charge the Maker (through credit, or debit card or through another agreed payment method) the amount of the fees as described in this Agreement, including any recurring payment you choose.
2.2 Referral and/or Promotional Codes. Makeplus may, in its sole discretion, create referral and/or promotional codes (“Promo Codes”) that may be used for discounts or credits on Makeplus Services or other features or benefits provided by Makeplus, subject to any additional terms that Makeplus establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, unless expressly permitted by Makeplus; (iii) may be disabled by Makeplus at any time for any reason without liability to Makeplus; (iv) may only be used pursuant to the specific terms that Makeplus establishes for such Promo Code; (v) are not valid for cash; (vi) may be subject to quantity or value limits; and (vii) may expire prior to your use. Makeplus reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that Makeplus determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of this Agreement or specific terms applicable to such Promo Codes.
2.3 Maximum Rental Time and Charges. The maximum rental time is 8 hours per day. Maker agrees that Maker will terminate his/her fabrication-session within 8 hours of entering a workspace. Maker may then rent again the following day. Maker agrees that he/she is solely responsible for being aware of the length of any elapsed fabrication-session time. The maximum day charge is $168 and is based on a calendar day. After ending Your fabrication-session, You will be charged the accumulated rental charges, or the maximum day charge, whichever is less.
Rental time will be calculated from the moment of entering a workspace through the Makeplus App until the Maker receives the confirmation through the Makeplus App that the fabrication-session has been ended. If You end the fabrication-session incorrectly, this may result in the fabrication-session not being terminated. If the fabrication-session is not ended properly, the fabrication-session will continue and the Maker will continue to be charged. If you have technical issues terminating a fabrication-session for any reason, You should report this to Makeplus through the Makeplus App immediately. Failure to report an issue in terminating a fabrication-session may result in continued charges.
Tools not returned (with the fabrication-session concluded) within 48 hours will be considered lost or stolen, and Maker may be charged up to the value of the Tool plus administrative and processing fees. Makeplus may also charge additional service fees for rentals in excess of 8 hours where the Tool is not lost or stolen.
2.4 Valid Payment Method. To be registered to use the Makeplus Services, Maker must provide Makeplus with a valid credit, debit card or prepaid card number and expiration date or other valid payment method information. Maker represents and warrants to Makeplus that Maker is authorized to use any credit, debit or prepaid card or other payment method information Maker furnishes to Makeplus. By providing your payment method, You agree that Makeplus is authorized to charge You for your fabrication-session and any other fees incurred by Maker under this Agreement, including all applicable governmental and regulatory charges and applicable sales and other taxes.
When you provide a payment method or in accordance with Makeplus policies, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is a standard practice. We do not charge you in connection with this authorization hold. If Your payment method expires and You do not update your information or cancel your account, You authorize us to continue billing, and You will remain responsible for any uncollected amounts. We reserve the right to retry billing all payment method(s) on file after any failed billing attempt. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
In the event Makeplus uses a third party collection and/or administrative agent to resolve any damages, infringements of law or of this Agreement, fines and/or penalties, Maker agrees to pay all costs and collection fees including, but not limited to, administrative and legal costs to such agent upon demand without protest.
If Maker disputes any charge on Maker’s payment method, then Maker must contact Makeplus within 10 business days from the end of the month with the disputed charge, and provide to Makeplus all fabrication-session information that is necessary to identify the disputed charge, such as the date of the fabrication-session and the approximate starting and ending times of the fabrication-session associated with the disputed charge. Maker agrees to immediately inform Makeplus of all changes relating to the payment method.
If You have agreed to make automatic or recurring payments, such payments will continue until you cancel or your account is terminated. You can cancel by following the instructions on the Makeplus App. If you cancel, You may use any remaining balance on your account but may not be able to continue using Makeplus Services until you have reauthorized an applicable payment method. Makeplus may continue to charge your payment method for any additional fees or charges incurred under this Agreement.
3.1 Tool Safety Check. Before each use of a Tool, Maker shall conduct a basic safety inspection of the Tool, which includes inspecting the following: (i) sharpness of the blade(s) and/or bit(s); (ii) safe operation of all rip fences and rails; (iii) good condition of the Tool; and (iv) any sign of damage, unusual or excessive wear, or other open and obvious mechanical problem/maintenance need. Maker agrees not to operate the Tool if there are any noticeable issues, and to immediately notify Maker service to alert Makeplus of any problems.
3.2 Lost or Stolen Tool. A Tool may be deemed lost or stolen if (a) the Tool is not returned within 24 consecutive hours after the termination of your rental period, (b) other facts and circumstances that suggest to Makeplus in its reasonable, good faith determination that a Tool has been lost or stolen. Makeplus and You agree that the last Maker operating a Tool shall be responsible for a lost or stolen Tool unless facts and circumstances suggest otherwise to Makeplus in its reasonable, good faith determination. If Makeplus deems a Tool lost or stolen, Makeplus shall have the authority to take any and all actions it deems appropriate (with respect to the last Maker operating a Tool or otherwise), including (without limitation) obtaining restitution and other appropriate compensation and damages and filing a police report with local authorities. Maker agrees the data generated by Makeplus’s computer is conclusive evidence of the period of use of a Tool by a Maker. Maker agrees to report Tool disappearance or theft to Makeplus immediately or as soon as possible.
3.3 Protective Wear; Safety. Maker agrees to wear protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers. Makeplus will provide basic protective gear which shall be used and maintained in a reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants that may be encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. Makeplus and all other Released Persons (defined below in Section 15) do not represent or warrant the quality or safety characteristics of any protective equipment, and Maker agrees that none of the Released Persons is liable for any injury suffered by Maker while using any of the Makeplus Services, whether or not Maker is wearing protective equipment at the time of injury. Maker assumes all risk of not wearing protective equipment. Maker may need to provide their own additional protective gear not specifically addressed in this Agreement.
3.4 Limitations on Tool Rental. Maker understands that Makeplus is not a common Tool source and agrees to abide by the Makeplus Tool operation regulations set forth in this agreement. Alternative means of fabrication are available to the general public and to Maker individually, including private contractors and fabrication service providers. Maker is fully capable of purchasing their own Tools, similar to those made available for rent by Makeplus, for fabrication processes not permitted by Makeplus. Makeplus provides Tools only as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Tool on their own and who have agreed to all terms and conditions of this Agreement.
4. TERMINATION. At any time and from time to time, and without Maker’s consent, Makeplus may unilaterally terminate Maker’s right to use the Makeplus Services, in Makeplus’s sole discretion and without any notice or cause. Maker may terminate Maker’s use of the Makeplus Services at any time; provided, however, that (i) no refund will be provided by Makeplus, (ii) the term of this Agreement continues in accordance with this Agreement, and (iii) Maker may still be charged any applicable additional fees in accordance with this Agreement. This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Maker’s right to use any of the Makeplus Services, regardless of how the Agreement is terminated.
6. LICENSE TO IMAGE AND LIKENESS. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do hereby knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to Makeplus and its affiliates, successors, and assigns to use at any time and from time to time, without any restriction, Your appearance and voice in photographs, videos, and other recordings related to Your use of the Makeplus Services, on all websites and for all press, promotional, advertising, publicity, and other commercial purposes, including all formats and media, whether now known or hereafter devised, throughout the world and in perpetuity; (2) grant to Makeplus and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice related to Your use of the Makeplus Services, at any time and from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as Makeplus may decide in its sole discretion, such photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge all Released Persons from all Claims (defined below in Section 15) that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by You in this paragraph.
7. NOTICE. Makeplus may be contacted by emailing or by mail at Makeplus LLC, 1445 E Adams Blvd, Los Angeles, CA 90011.
8. CHOICE OF LAW; DISPUTE RESOLUTION. This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of California, excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the State of California and agrees that those courts have personal jurisdiction over each party; (iii) venue must be in Los Angeles, California.
9. BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
9.1 Initial Dispute Resolution. Maker Support is available via the Makeplus App to address any concerns you may have regarding your use of a Tool and/or this Agreement. The parties shall use their best efforts through this support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating mediation, arbitration, or a lawsuit.
9.2 Binding Arbitration. If the parties do not reach an agreed upon solution through the support process, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to use and rental of a Tool, this Agreement, and the parties’ relationship with each other shall be finally settled by binding arbitration administered by JAMS, or alternatively a mutually agreed upon arbitrator or arbitration service, under the applicable commercial arbitration rules for JAMS or the mutually agreed upon arbitration service, excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Makeplus will pay the additional cost. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
9.3 Location. The arbitration will take place in Los Angeles, California or a mutually agreed upon location.
9.4 Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND MAKEPLUS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
9.5 Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
9.6 Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Makeplus LLC, 1423 E Adams Blvd, Los Angeles, CA 90011. The notice must be sent within 30 days of the effective date or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Makeplus also will not be bound by them.
9.7 Changes to this Section. Makeplus will provide prior written notice of any changes to this section. Changes will become effective only after prior written notice and will apply prospectively only to any claims arising after the notice period.
For any dispute not subject to arbitration you and Makeplus agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Los Angeles, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
10. WAIVER AND SEVERABILITY. No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
11. CUMULATIVE REMEDIES. All rights and remedies granted under or referred to in this Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.
12. FINAL AGREEMENT; MODIFICATION BY MAKEPLUS. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Maker’s consent, Makeplus may unilaterally amend, modify, or change this Agreement, in its sole discretion. By continuing to use any of the Makeplus Services after any amendment, modification, or change, Maker has agreed to be bound by all such amendments, modifications, and changes. Maker must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Agreement, Makeplus will post a notification on the Website. The pricing set forth on the Website or Makeplus App and/or at the Makeplus Shop supersedes all pricing set forth in this Agreement.
13. CONTRACT INTERPRETATION. The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not to be exclusive in its meaning. “Including” means “including, but not limited to.” Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine, and neuter pronoun forms.
14. VOLUNTARY EXECUTION OF THIS AGREEMENT. This Agreement is entered into voluntarily, with consideration, and without any duress or undue influence on the part or behalf of Makeplus. Maker acknowledges that he/she (a) has read this Agreement; (b) understands the terms and consequences of this Agreement, including the releases it contains; and (c) is fully aware of the legal and binding effect of this Agreement.
15. RELEASES; DISCLAIMERS; ASSUMPTIONS OF RISK. In exchange for the Maker being permitted to use Makeplus Services for any purpose, including, but not limited to observation, use and/or operation of stationary and portable power tools as well as handheld tools (“Tool” or “Tools”), or participation in any way, the Maker, for himself or herself and any personal representatives, heirs, and next of kin, hereby acknowledges, agrees and represents that he or she has inspected such premises, facilities and Tools. It is further warranted that such entry into the Makeplus Shop for observation, participation or use of any facilities, premises, and/or Tools constitutes an acknowledgement that such premises, facilities and Tools thereon have been inspected by the Maker, and that the Maker finds and accepts same as being safe and reasonably suited for the purposes of such observation or use.
IN FURTHER CONSIDERATION OF BEING PERMITTED TO ENTER THE SHOP FOR ANY PURPOSE INCLUDING, BUT NOT LIMITED TO OBSERVATION, USE AND/OR OPERATION OF TOOLS, OR PARTICIPATION IN ANY WAY, THE MAKER HEREBY AGREES TO THE FOLLOWING:
15.1 MAKER HEREBY RELEASES Makeplus LLC,its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns (hereinafter referred to as “Releasees") from all liability to the Maker, his/her personal representatives, assigns, heirs, and next of kin for any loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the Maker, whether caused by the negligence of the Releasees or otherwise while the Maker is in, upon, or about the premises, facilities or using/operating any Tools or being present during the use and/or operation of any Tools therein for any purpose.
15.2 MAKER HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Releasees and each of them from any loss, liability, damage or cost they may incur due to the presence of the Maker in, upon or about the Makeplus Shop, premises, or facilities, or in any way observing or using/operating any Tools made available by Makeplus at the Shop whether caused by the negligence of the Releasees or otherwise.
15.3 MAKER HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of Releasees or otherwise while in, about or upon the premises or facilities of the Makeplus Shop and/or while using/operating the any Tools hereon.
15.4 MAKER HEREBY UNDERSTANDS that the Makeplus Shop houses and utilizes a wide range of stationary and portable power tools as well as handheld tools which are extremely hazardous when used improperly, and that the Makeplus Shop will not provide any training, supervision, or identification of uses or hazards of any of its tools.
15.5 MAKER HEREBY UNDERSTANDS that the tools and equipment housed by the Makeplus Shop are extremely hazardous when used without wearing appropriate Personal Protective Equipment (PPE). Makeplus Shop does not represent, warrant, or guarantee that any PPE that it may provide is sufficient to prevent any injuries. It is the Maker’s responsibility to obtain and use any PPE he/she believes is appropriate for the circumstances.
15.6 MAKER HEREBY AGREES that this waiver and release of liability includes, without limitation, injuries which may occur as a result of (a) the use of any premises, facilities, or Tools which may malfunction or break; (b) the Releasees’ improper maintenance of any premises, facilities or Tools, (c) slipping and falling while on the premises or facilities whether using the Tools or not, and (d) injury caused by the misuse and/or improper handling (including but not limited to, Tool kick-back) of Tools by You or anyone else at the Shop.
15.7 MAKER HEREBY ACKNOWLEDGES that use of any of the Tools is very dangerous and can cause serious injury and/or death from any number of sources, including but not limited to, malfunctioning equipment, power outages, the conduct of other participants, the negligence of Releasees, and other factors. Maker freely assumes those risks.
15.8 MAKER HEREBY WAIVES, RELEASES AND DISCHARGES any and all claims of damages for death, personal injury, pain, suffering, illness, psychological injury, economic or emotional loss, or property damage which Maker may have, or which may hereafter accrue to him or her, as a result of Maker’s presence in the Shop and/or the use of any of the Tools. The release is intended to discharge in advance the Releasees from and against any and all liability arising out of or connected in any way with Maker’s presence in the Shop and/or the use of any of the Tools and equipment, even though that liability may arise out of the negligence or carelessness on the part of the Releasees.
15.9 MAKER FURTHER EXPRESSLY AGREES THAT THE FOREGOING RELEASE AND WAIVER OF LIABILITY is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
15.10 MAKER VOLUNTARILY ASSUMES all risk known and unknown, of injuries or death, however caused, even if caused in whole or in part by the action, inaction, or negligence of the Releasees to the fullest extent of the law.
MAKER ACCEPTANCE OF AGREEMENT
I certify that I have read and expressly agree to the terms and conditions of Section 15 Releases; Disclaimers; Assumption of Risk, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the Tool, and am reasonably competent and physically fit to use/operate the Tool.
I certify that I am the Maker, I am 18 years old or over, I will wear all mandatory PPE required by Makeplus, I will not use/operate a Tool while under the influence, I will comply with the rules and regulations set forth by Makeplus, I will use the Makeplus Services at my own risk, and I have read and expressly agree to the terms and conditions set forth in this Agreement.