1.1. “Content” shall mean art, graphic art, photos, graphics, images, icons, sounds, sound recording, voice recordings, music, music recordings, sound effects, audiovisual works, animations, text, data indicative of these or any of them, or other similar materials, regardless of format, used, accessed, viewed, consumed, or provided by you in connection with your use of the Services.
1.2. “PP2” shall mean PerformancePartners2 LLC, a Missouri limited liability company d/b/a MakeModel, and its parents, subsidiaries, officers, directors, employees, agents, affiliates, contractors, licensors, business partners, successors and assigns.
1.3. “Services” shall mean information and/or services provided or made available by PP2 through its web site(s) or software product(s) and applications. The Services include, without limitation, the PP2 web site and online services provided via the MakeModel application.
1.4. “You” and “your” shall mean a user of the Services.
Acceptable Use Policy
This section contains PP2 Acceptable Use Policy (the “AUP”), which describes prohibited uses of the Services offered or provided by PP2. The examples described in this AUP are not exhaustive. PP2 may modify this AUP at any time by posting a revised version of these Terms on its website. By using or accessing the Services, you agree to the latest version of this AUP. If you violate the AUP or authorize or help others to violate it, PP2 may temporarily or permanently suspend or terminate your account and/or access to or use of the Services.
A. NO UNLAWFUL OR PROHIBITED USE
You will not use the Services for any purpose that is unlawful or otherwise prohibited by this AUP. you may not use the Services in any manner that could damage, disable, overburden, or otherwise impair any of the Services, or any services offered by a third party, or interfere with any other party's use and enjoyment of the Services. You may not attempt to gain unauthorized access to any Service, other accounts, computer systems or networks through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
B. USE OF SERVICES
You will not:
Use the Service in connection with unlawful contests, lotteries, or gambling; pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
Defame, abuse, harass, stalk, threaten, bully, or violate the legal rights (such as rights of privacy and publicity) of others.
Publish, post, upload, distribute, traffic or disseminate any defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, bullying, or otherwise objectionable or unlawful content.
Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group based on race, religion, sex, gender identity, sexual orientation, ethnicity, disability, or nationality.
Upload, or otherwise make available files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity), unless you own or control the rights thereto or have received all necessary consents to do same.
Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
Upload files that contain viruses, worms, Trojan horses, macros, scripts, keyloggers, data scrapers, packet sniffers, or any other any software or code that interrupts, destroys, inhibits, or limits the functionality of any computer or telecommunications system, software, or hardware.
Download any content posted by another user of a Service that you know, or reasonably should know, cannot be legally distributed in such manner.
Restrict or inhibit any other user from using and enjoying the Services.
Harvest or otherwise collect information about others.
Violate any applicable laws, policies, or regulations.
Create a false identity for the purpose of misleading others. Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden. You agree to fully comply with the United States Federal Trade Commission ("FTC") statutes and regulations (if you do business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC.
Uses technology or other means to access PP2 proprietary information in a manner not expressly authorized by PP2.
Use any automated or directed system to access the PP2 web site, computer systems, or Services.
Gains or attempts to unauthorized access to PP2 computer network, computer systems, or user accounts.
Encourage or facilitate conduct that would constitute a criminal offense or give rise to civil liability.
Violate the Terms and Conditions or End User License Agreement.
Make commercial use of the Services, including but not limited to producing or developing content in exchange for payment, remuneration, or consideration of any kind and/or selling content created using any PP2 software or Services, except to the extent such transactions are expressly authorized by PP2 and carried out through Services provided by PP2.
Cause annoyance, inconvenience or needless anxiety, or engage in behavior intended to, or likely to, upset, embarrass, alarm or annoy any other person.
Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
Give the impression that content emanates from or is endorsed by PP2 or any other person or entity, if this is not the case.
C. CONTENT PROVIDED BY USERS
By sharing content, you warrant and represent that you own or otherwise control all of the rights to such content necessary for you to lawfully share the content, and for PP2 to lawfully use the content in connection with the Services. You further warrant and represent that all content you share will comply with the acceptable uses set forth herein.
D. DMCA COMPLIANCE AND REPEAT OFFENDER POLICY
It is the policy of PP2 to promptly investigate and respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to PP2 pursuant to the Digital Millennium Copyright Act (“DMCA”). PP2 has designated an agent to receive notification of alleged copyright infringement occurring on web pages or via services offered by PP2. If you believe that your copyrighted work is being infringed on a PP2 web site or service, please notify our designated agent, preferably by email, at:
Attn: MakeModel Copyright Compliance
1336 Bryan Meadows Ct
St. Louis, MO 63122
If you believe content has been used on a PP2 web site or service in a way that constitutes copyright infringement, please provide PP2 with the following information:
a physical or electronic signature of the copyright owner or a person authorized to act on behalf of same;
identification of the copyrighted work claimed to have been infringed;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PP2 to locate the material such as, for example, a URL;
your contact information, including your address, telephone number, and an email address;
a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
PP2 may not be able to act on your complaint promptly or at all if you do not provide the above required information.
If PP2 is notified of a claimed copyright infringement pursuant to the DMCA, or otherwise becomes aware of facts and circumstances from which infringement is apparent, PP2 will respond appropriately, which may include removing or disabling access to the allegedly infringing material. PP2 will follow the procedures outlined in the DMCA with regard to appropriate notifications of the user sharing or supplying the allegedly infringing material and the complaining party, acceptance of counter notifications, and, where indicated, restoration of the alleged infringing material. PP2 reserves the right to temporarily or permanently suspend or remove access to the Services for repeat offenders.
Scope of Services
The Services may change from time to time without prior notice to you. You understand and agree that PP2 is under no obligation to continue providing the Services and may at any time permanently or temporary discontinue providing some or all of the Services. This may cause PP2 products to experience a reduction in functionality. PP2 may also impose limitations on your use of the Services, including without limitation bandwidth limitations, usage limitations, storage limitations, download limitations, and other limitations. Any limitations imposed are at PP2’s sole discretion and may be imposed without prior notice to you.
You are responsible for safeguarding the password that you use to access the Services and for any activities or actions carried out using your account and/or your password. This responsibility includes, without limitation, using a strong password that is difficult to guess or crack. You agree that PP2 cannot and will not be liable for any loss, damage, or injury arising directly or indirectly from your failure to keep safe and/or secure your account and/or password and you agree to indemnify, defend, and hold harmless PP2 for same.
Content on the Services
All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who Shared such Content. PP2 does not control the Content posted via the Services and cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk, including without limitation risk of faulty information or damage, injury, or loss relating directly or indirectly to defective files or data downloaded via the Services.
In addition to these Terms, Content submitted to the Services is additionally governed by the PP2 Acceptable Use Policy in Section 3 of these Terms, including the provisions therein concerning the infringement of third party intellectual property.
PP2 does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, reliability, or reliability of any Content Shared via the Services or endorse any opinions expressed by any Shared Content via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate. You understand and agree that Content may be mislabeled or otherwise deceptive and that PP2 is not responsibility for any loss, damage, or injury relating directly or indirectly to your reliance, whether or not reasonable, on Content Shared via the Services. Under no circumstances will PP2 be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available or Shared via the Services or rebroadcast, republished, or otherwise Shared elsewhere.
Your Rights and Shared Content
Subject to any applicable licenses to PP2, you retain your rights to Content you Share through the Services. By Sharing Content on or through the Services, you grant to PP2 a perpetual, worldwide, non-exclusive, assignable, transferrable, sublicensable, irrevocable, royalty-free license to reproduce, use, copy, reproduce, process, adapt, modify, prepare derivative works of, publish, transmit, display and distribute such Content in any and all media or distribution methods, whether now known or later developed. PP2 may use such Content without seeking or acquiring your prior permission or consent and without providing you prior notice.
In addition to these Terms, Content you Share through the Services is additionally governed by the PP2 Acceptable Use Policy in Section 3 of these Terms, including the provisions therein concerning the infringement of third party intellectual property.
You warrant and represent that Content Shared by you in connection with your use of the Services does not infringe any third party’s rights, including without limitation rights of privacy, likeness rights, and/or intellectual property rights, and that you have the authority, ability, and right to grant to PP2 the license described in this Section 7. You further represent and warrant that you have all the rights and authority necessary to grant the license described in this Section 7 for any Content that you Share in connection with the Services.
You agree that this license includes the right for PP2 to provide, promote, and improve the Services and to make Content Shared through the Services available to third parties, including without limitation other users, companies, organizations, or individuals who use the Services or partner with PP2 for the syndication, broadcast, distribution or publication of such Content on other media and/or services subject to our terms and conditions for such Content use. Such additional uses by PP2 and/or third parties may be made with no compensation to you with respect to the Content that you Share through the Services.
PP2 may modify or adapt your Content in order to transmit, display or distribute it over computer and/or telecommunications networks and in various media and/or make changes to your Content as necessary to conform and adapt such Content to any requirements or limitations of any networks, devices, services or media.
You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by third parties. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. PP2 will not be responsible or liable for any use of your Content by PP2 in accordance with these Terms.
You understand and agree that you do not have any proprietary right in your PP2 account and nothing in this Section or these Terms shall be construed to create, recognize, or form any such proprietary right in your PP2 account. PP2 is not a backup service and you are solely responsible for maintaining original and/or backup copies of any Content you Share. PP2 is under no obligation and has no duty to preserve or maintain copies of any Content you Share, nor to provide you or any other person or entity with copies or access to same.
Your License to Use the Services
PP2 grants to you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use PP2 software in connection with your use of the Services. This license is for the sole purpose of enabling you to use and enjoy the Services as provided by PP2 in the manner permitted by these Terms. The use of PP2 software may be subject to additional terms, including without limitation an End User License Agreement. Nothing in this Section shall be construed or deemed to supplement, cancel, modify, or waive any term of provision in the End User License Agreement applicable to any PP2 software.
The licensed granted herein is for your personal and individual non-commercial use of the functionality of the Services for entertainment purposes only. In no event may you use the Servers for any purpose that: (a) harasses, abuses, threatens, defames, bullies, incites violence, or otherwise infringing or violating the rights of any other party; (b) is unlawful, fraudulent, or deceptive; (c) uses technology or other means to access PP2 proprietary information in a manner not expressly authorized by PP2; (d) includes the use of any automated or directed system to access the PP2 web site, computer systems, or Services; (e) introduces or attempts to introduce viruses, ransomware, worms, Trojan horses, macros, scripts, keyloggers, data scrapers, packet sniffers, or any other any software or code which interrupts, destroys, inhibits, or limits the functionality of any computer or telecommunications system, software, or hardware; (f) gains or attempts to unauthorized access to PP2’s computer network, computer systems, or user accounts; (g) encourages or facilitates conduct that would constitute a criminal offense or give rise to civil liability; (h) violates these Terms; (i) is commercial in nature, including, but not limited to, promoting your or a third party’s goods and services, or producing or developing content in exchange for payment, remuneration, or consideration of any kind and/or selling content created using PP2 software and/or the Services or for use with PP2 software and/or the Services, except to the extent such transactions are expressly authorized by Performance Partners and carried out through Services provided by PP2.
All right, title, and interest in and to the Services, excluding Content provided by users, are and will remain the exclusive property of PP2. The Services are protected by copyright, trademark, and other laws of the United States, foreign countries, and certain international treaties. Nothing in the Terms gives you a right to use the PP2 name or any PP2 trademarks, logos, slogans, domain names, and/or other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding PP2 or the Services is entirely voluntary and PP2 may use such feedback, comments or suggestions in PP2’s sole discretion without any obligation to you.
Restrictions on Content and Use of the Services
You agree that you will use the Services only as provided herein and in any case in compliance with all applicable laws, rules, regulations, ordinances, or policies. PP2 reserves the right at all times, but shall not and will not have an obligation, to remove or refuse to distribute any Content on the Services, to suspend or terminate users and/or user accounts, and to reclaim usernames and/or account data without liability or obligation to you. PP2 also reserves the right to access, read, preserve, and disclose any information PP2 reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of PP2, its users and the public.
You may not do any of the following while accessing or using or otherwise in connection with your use of the Services: (i) access, tamper with, or use non-public areas of the Services or the computer systems, technical infrastructure, or networks of PP2 and/or its suppliers, vendors and/or providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search, or attempt to access or search, the Services by any means, automated or otherwise, other than through the use of PP2 software provided or made available to you, or published interfaces to same provided by PP2 (and only pursuant to terms and conditions applicable thereto), unless you have been specifically allowed to do so in a separate written agreement with PP2; (iv) forge any network communications protocol packet or packet header, including without limitation any email or posting, or in any way use the Services to send altered, deceptive or false source- or origin-identifying information; or (v) interfere with or disrupt (or attempt to do so) the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services or the infrastructure systems supporting same, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services. Nothing in the foregoing limitations shall be construed to prevent or disallow crawling the Services in accordance with the provisions of the robots.txt file, if any. Scraping the Services without the prior written consent of PP2 is expressly prohibited.
Term and Termination
The Terms will continue to apply until terminated by you or PP2 as follows:
You may end your legal agreement with PP2 at any time for any reason by deactivating your account(s) and discontinuing your use of the Services. You do not need to specifically inform PP2 when you stop using the Services. If you stop using the Services without deactivating your account(s), your account(s) may be deactivated due to prolonged inactivity.
PP2 may suspend or terminate your account(s) or cease providing you with all or part of the Services at any time for any reason, including, but not limited to, if PP2 reasonably believes: (i) you have violated these Terms; (ii) you create risk or possible legal exposure for Performance Partners and/or other users; or (iii) PP2 provision of the Services to you is no longer commercially viable. PP2 will make reasonable efforts to notify you by the email address associated with your account, if any, or the next time you attempt to access your account.
In all such cases, the Terms shall terminate, including, without limitation, your license to use the Services and the license grant in Section 9, except that the following Sections shall continue to apply: 3, 7, 8, 10, 13 and 14.
Nothing in this section shall affect PP2’s rights to change, limit or stop the provision of the Services without prior notice, as provided in Section 4.
Disclaimers and Limitations of Liability
Please read this section carefully since it limits the liability of PP2. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions, including New Jersey, do not allow certain disclaimers or limitation of liability in contracts, and as a result the contents of this section may not apply to you or the liability of PP2 shall only be limited to the maximum extent permitted by law. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
A. The Services Are Provided and Made Available "AS-IS"
YOUR ACCESS TO AND USE OF THE SERVICES AND/OR ANY CONTENT ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PP2 DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
PP2 makes no warranty and disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of the Services or any Content; (ii) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or any Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from PP2 or through the Services, will create any warranty not expressly made herein.
The Services may contain links to third-party websites or resources. You acknowledge and agree that PP2 is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by PP2 of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
C. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PP2 SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PP2 EXCEED THE AMOUNT YOU PAID PP2, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT PP2 HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Dispute Resolution. You agree that in the event of any dispute between you and PP2 arising under these Terms or otherwise in connection with your use of the Services, you and PP2 shall first attempt to resolve the dispute informally for a period of not less than thirty (30) days commencing upon receipt of a notice by the complaining party setting forth the nature of the complaint and the relief sought. If any claim cannot be resolved informally, such claim shall be heard only in a federal or state court of the State of Missouri having within its territorial jurisdiction the County of St. Louis, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
If you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Missouri (excluding choice of law).
Complete Agreement. This Agreement represents the complete agreement between you and PP2 with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements between you and PP2; provided however that this Agreement shall coexist with, and shall not supersede, the Apple Terms and Conditions and the Performance Partners EULA. No other person or company will be third party beneficiaries to these Terms.
Non-Waiver. PP2’s failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by PP2 of any provision, condition or requirement of these Terms shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Severability of Terms. If any provision of these Terms is held to be invalid or unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. If, however, it is determined that such provision cannot be reformed, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
Choice of Law. In any action to enforce the terms of these Terms, Missouri law shall apply.
These Services are operated and provided by:
1336 Bryan Meadows Ct.
St. Louis, MO 63122