E-Book Systems, Inc.'s Website Terms and Cinditions of Use
Under this Agreement, E-Book Systems offers the user (“you,” “your” or “user”) the ability to (i) use the Web Sites; (ii) download and/or purchase software; (iii) receive newsletters; (iv) participate in forums and chats; (v) upload pictures for display on the Web Sites; and (vi) flip-enable web sites, among other things. By using the Web Sites, you agree to be bound by terms and conditions of this Agreement, including but not limited to your agreement to conduct transactions electronically, limit/exclude damages and remedies, and accept California law. You may scroll down to review all of the terms and conditions contained in this document, or you may print it out as enabled by your browser. You hereby declare that you are the person or entity using the Web Sites. If you are not making this Agreement on your own behalf, you warrant that you are legally authorized to enter into the Agreement on behalf of the entity described in the registration form and that your actions will legally bind that entity.
Table of Contents
2. Grant of License and Restrictions
4. Software and EULA
5. Use of Password
6. Copyrights and Trademarks
7. Submitting Materials and Feedback
8. Agreement to Conduct Transactions Electronically
9. Record Retention
11. Termination or Cancellation
12. Your Representations and Warranties
13. No E-Book Systems Warranties; As Is
14. Assumption of Risk
15. No Incidental, Consequential or Certain Other Damages
16. Limitation of Liability and Exclusive Remedy
17. Linked Sites and Flip-Enabled Materials
18. Transfer of Rights
19. Amendments; Complete Agreement
20. Waiver of Contractual Right
22. Governing Law; Exclusive Jurisdiction
23. International Usage
24. General Notices
25. Notice to Copyright Agent
1. OWNERSHIP. The Web Sites, Applications and Software (as defined below) are the exclusive property of E-Book Systems and/or its suppliers. All rights not granted herein are reserved by E-Book Systems.
2. GRANT OF LICENSE AND RESTRICTIONS. In accordance with this Agreement, we grant you a non-exclusive, non-transferable, terminable license to view and use our Web Sites only for the purposes or placing product orders, downloading software, accessing information, Applications and Software, as well as posting, uploading and distributing content to and through the Web Sites. We reserve the right to suspend or deny, in our sole discretion, your access to all or any portion of the Web Sites. You may not (a) use any robot, spider, other automatic device or manual process to monitor or copy our web pages or the content contained therein without our prior written permission; (b) use any device, software or routine to interfere or attempt to interfere with the proper working of the Web Sites, Applications or Software; (c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (d) reverse engineer, reverse assemble or otherwise attempt to discover any source code of any Application or Software; (e) copy, reproduce, alter, modify, create derivative works, or publicly display any Application, Software or content from our Web Sites without our prior written permission, or that of the appropriate third party; (f) alter or modify the copyright notices and any other proprietary legends that appear on the Web Sites; or (g) access our Web Sites by any means other than through the interface that is provided by us.
3. APPLICATIONS. From time to time we may offer you the ability to use certain creative applications. For example, we may provide forums, chat areas, bulletin boards, e-mail functions and the ability to create, upload, post or distribute flip-enabled greetings, cards, books and pictures (“Applications”). E-Book Systems grants you a limited license to use the Applications subject to the following conditions.
- You understand that all information, text, data, software, sounds, photographs, audio, audiovisual, video, artwork, graphics, messages and other materials, including flip-enabled content (“Materials”) that are transmitted to or via the Web Sites are the sole responsibility of the person from whom the Materials originated. This means you, and not E-Book Systems, are entirely responsible for the Materials you transmit through the Web Sites. Further, you understand that by using the Web Sites you may be exposed to Materials that are offensive, objectionable or indecent.
- You shall not create a user name, screen name or label or upload to, distribute through or otherwise publish through the Web Sites any Materials which are indecent, libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, harassing, or otherwise objectionable, or that would constitute or encourage a criminal offense, violate the rights of any party or violate any law.
- Your Materials, user name, screen name and labeling of Materials shall not contain expressions of hatred, bigotry, racism or pornography.
- Your Materials, user name, screen name and labeling of Materials shall not disparage in any manner E-Book Systems, its products and Web Sites, including but not limited to the Applications and Software.
- Your Materials shall not infringe the copyright, trademark or other intellectual property right of any third party.
- You shall not upload to, distribute through or otherwise publish through the Web Sites any Materials that are directly or indirectly commercial in nature or contain any solicitation of funds, promotion, advertising or solicitation for goods or services. You specifically acknowledge that soliciting other registered users to join or become members of any commercial online web site or other organization is expressly prohibited.
- You shall not upload to, distribute through or otherwise publish through the Web Sites any Materials that contain viruses or any other computer code, corrupt files or programs designed to interrupt, destroy or limit the functionality or disrupt any software, hardware, telecommunications facilities, networks, servers or other equipment.
4. SOFTWARE AND EULA. From time to time we may offer you the ability to download software such as the FlipAlbum and FlipViewer (the “Software”). The Software that is made available to you via download is the copyrighted work of E-Book Systems and/or its suppliers. The use of the Software is governed by the terms and conditions of the end user license agreement (“EULA”) that accompanies or is included in the software or which is expressly stated on the Web Site pages accompanying the Software, and these terms. In the event that no EULA accompanies the Software, then this Agreement shall govern your use of the Software. You may not download any Software from the Web Sites without agreeing to the terms and conditions of the EULA, if any, and these terms. Unless expressly stated otherwise in the EULA, you are granted a limited license to download and use the Software from a single computer. You may not make copies of or distribute the Software or electronically transfer the Software from one computer to another or over a network. You may not decompile, reverse engineer, disassemble or otherwise reduce the Software to human perceivable form. You may not rent, lease or sublicense the Software. You may not create derivative works of the Software and you may not export the Software in violation of any U.S. export laws, regulations or orders.
5. USE OF YOUR PASSWORD. All content or instructions transmitted by or received from anyone presenting your password on the Web Sites will be deemed binding on you. You agree that you are solely liable for all actions taken via your password, whether or not made with your knowledge or authority. You agree to guard your password carefully, with the full awareness that a failure to keep it secure will enable others to engage in transactions through the Web Sites for which you will be legally responsible. If you suspect that someone may have obtained access to your password who is not intended to have authority to act on your behalf, please contact E-Book Systems immediately to authorize us to deny access to the Web Sites to anyone else presenting your password.
6. COPYRIGHTS AND TRADEMARKS. Our Web Sites are protected by intellectual property laws and you agree to respect them. Please see our Copyright and Trademark Notice for more information about our trademarks and copyrights. If you are an operator of a flip-enabled web site, you may display the E-Book System’s trademarks on your web site and link to the Web Sites provided you comply with the E-Book Systems Trademark Usage Guidelines. Except as expressly provided above, E-Book Systems has not conferred upon you by implication, estoppel or otherwise, any license or right under any patent, trademark, copyright or other proprietary rights to the content and Material offered on the Web Sites. As for intellectual property rights of others, anyone who believes that their work has been reproduced in a way that constitutes copyright infringement should refer to the Notice to Copyright Agent section below for the procedures for making a claim of copyright infringement to E-Book Systems.
7. SUBMITTING MATERIALS AND FEEDBACK. By submitting any Materials, feedback, data, questions, comments, suggestions or the like (“Feedback”) to the Web Sites, you automatically grant (or warrant that the owner of such rights has expressly granted) E-Book Systems a perpetual, fully-paid, royalty-free, irrevocable, world-wide, non-exclusive right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, sell, transmit, transfer, distribute, publicly display and publicly perform such Feedback or incorporate such Feedback into any form, media or technology now known or later developed throughout the universe. Moreover, E-Book Systems shall have the right to further sublicense these rights to third parties. In addition, you warrant that all so-called “moral rights” in those materials have been waived.
8. AGREEMENT TO CONDUCT TRANSACTIONS ELECTRONICALLY. You agree that all of your transactions with or through the Web Sites may, at our option, be conducted electronically. You also agree that we may provide all agreements, disclosures and notices electronically, including any that we are otherwise required to provide in “writing.” We will provide these in screen text or deliver a copy to the email address that you provide to us at registration. If you do not wish to deal with us electronically, you should not enter into this Agreement.
9. RECORD RETENTION. You agree to print (or copy) and retain agreements or disclosures that we are required to deliver to you in writing. To the extent required by law, we instruct you to retain a copy in your legal records. You may make a paper copy by pressing the “print” button on your browser; you may make an electronic copy by selecting the “save file” option in your browser. If you cannot do either, you may email us at email@example.com, or write us at E-Book Systems, Inc., 5201 Great America Parkway, Suite 320, Santa Clara, California 95054 and we will send a copy. As a customer service, we may attempt to locate data for you if we still have it when you ask for it, but we do not assume any duty to retain or produce data and we reserve the right to charge a retrieval fee. We grant you a revocable, limited license to print copies of this Agreement for the purpose of documenting your transactions.
11. TERMINATION OR CANCELLATION. This Agreement may be terminated or cancelled by either party, with or without cause at any time, by providing thirty (30) days’ written notice to the other party; provided however, sections 1, 6, 7, 10 and 12-25 of this Agreement shall survive termination. Notwithstanding termination (or cancellation), you will still be liable for payment of any amounts due or other obligations incurred before termination or cancellation, whether the Agreement is ended by you or by us. We may also suspend, cancel or terminate your registration; block your use of the Web Sites; or direct you to cease using the Web Sites, if we believe in good faith that you or a related person has breached or may breach this Agreement.
12. YOUR REPRESENTATIONS AND WARRANTIES. You represent and warrant for the benefit of E-Book Systems, its affiliates and any third parties mentioned on the Web Sites that: (a) you possess the legal right and ability to enter into and make the representations and warranties contained in this Agreement; (b) all information submitted by you to the Web Sites is true and accurate; (c) you will keep your registration information current; (d) you will be responsible for all use of your password even if such use was conducted without your authority or permission; (e) you will not use the Web Sites for any purpose that is unlawful or prohibited by this Agreement; (f) you will make and maintain back-up copies of any Materials, including flip-books which you upload or otherwise distribute through the Web Sites; and (g) you possess all legal rights in and to the Materials which you post, upload or distribute through the Web Sites.
13. NO E-BOOK SYSTEMS WARRANTIES; AS IS. EXCEPT AS EXPRESSLY PROVIDED IN AN AGREEMENT (SUCH AS AN EULA) BETWEEN YOU AND E-BOOK SYSTEMS, THE WEB SITES, PRODUCTS OFFERED AT THE WEB SITES, APPLICATIONS AND SOFTWARE ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND AND WITH ALL RISKS. E-BOOK SYSTEMS HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AVAILABILITY OF THE WEB SITES; LACK OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY INFORMATION ON THE WEB SITES, APPLICATIONS OR SOFTWARE; AND ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE IN CONNECTION WITH THE WEB SITES, APPLCIATIONS OR SOFTWARE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN CONNECTION WITH THE WEB SITES, APPLICATIONS AND SOFTWARE IS BORN BY YOU. IN ADDITION, E-BOOK SYSTEMS DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE OR QUIET ENJOYMENT IN CONNECTION WITH THE WEB SITES, APPLICATIONS AND SOFTWARE. E-BOOK SYSTEMS SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA OR OTHER MATERIAL.
14. ASSUMPTION OF RISK. YOU ASSUME ALL RISKS THAT THE WEB SITES, APPLICATIONS AND SOFTWARE ARE NOT SUITABLE OR ACCURATE FOR YOUR NEEDS AND ARE NOT UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. YOUR USE OF THE WEB SITES, APPLICATIONS AND SOFTWAR IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA RESULTING THEREFROM. SIMILARLY YOU AGREE THAT BY Participating in forums or visiting chat rooms you may be exposed to rude, crude, indecent, or other OFFENSIVE language or references.
15. NO INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER DAMAGES. TO THE FULL EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER WE, NOR ANY OF OUR AFFILIATES OR AGENTS, WILL BE LIABLE TO YOU AND/OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF PRIVACY OR FOR FAILURE TO MEET ANY DUTY INCLUDING BUT NOT LIMITED TO ANY DUTY OF GOOD FAITH, LACK OF NEGLIGENCE OR OF WORKMANLIKE EFFORT OR ANY OTHER INDIRECT, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER THAT ARISE OUT OF OR ARE RELATED TO THE WEB SITES, APPLICATIONS, SOFTWARE OR TO ANY BREACH OF THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY.
16. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY. You agree that your sole remedy for any breach of this Agreement by us or any of our affiliates or agents shall be, at our option: (a) substitution or replacement of all or part of the Web Sites, Application or Software that gives rise to damages incurred by you in reasonable reliance on us; or (b) refund of the amount that you paid to us. You agree that the damage exclusions in the Agreement and this limitation of liability shall apply even if any remedy fails of its essential purpose.
17. LINKED SITES AND FLIP-ENABLED MATERIALS. Our Web Sites may contain links to sites of third parties, including advertisers. While their services might be helpful to you, they are independent businesses and we do not control or endorse them. You agree to visit them and use their services at your own risk. Similarly, we provide all of our users with the ability to upload flip-enabled Materials. While, we do endorse any user-supplied Materials, we reserve the right to remove any Materials, flip-enabled or otherwise, as we determine in our sole discretion.
19. AMENDMENTS; COMPLETE AGREEMENT. You agree that we may from time to time amend or add to the terms and conditions of this Agreement (“Amendments”), including without limitation, Amendments that add registration fees or change payment methods or requirements. When practical, we will endeavor to give you prior notice of Amendments. When such notice might expose us or others to harm, we reserve the right to provide notice after the Amendment. All Amendments will be effective ten (10) days after notice unless an earlier time is specified by us. Except as to your use of the Web Sites before the effective date of an Amendment, any use of our Web Sites after that date shall be your consent to the amended terms. If you do not want to be bound by an Amendment, you will need to terminate your registration and refrain from using the Web Sites after that date. This Agreement and any Amendments, your registration, the disclosures provided by us and the consents provided by you on the Web Sites, and any EULA constitute the entire agreement between you and us and supersede any prior written or oral agreements between the parties. No changes proposed by you or us will be effective unless and until they appear in this Agreement or in the Amendments as posted by us on any Web Site. No other Amendments will be valid unless they are in a paper writing signed by us and by you.
20. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
21. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
22. GOVERNING LAW; EXCLUSIVE JURISDICTION. This Agreement, the performance of the Web Sites, Applications and Software and all other matters that relate in any way to the Web Sites, Applications and Software shall be governed by the laws of the State of California without regard to its conflict of law provisions. Any disputes arising under or related in any way to this Agreement or the Web Sites shall be litigated, arbitrated or otherwise heard in the appropriate forum in California. The parties hereto hereby consent to exclusive jurisdiction over them in any state or federal court sitting in California, and hereby waive any claim or defense that such forum is not convenient or proper, and consent to service of process by any means authorized by California law.
23. INTERNATIONAL USAGE. The Web Sites are distributed internationally and may contain references to E-Book System products, Web Sites, Applications and Software that have not been announced in your country. These references do not imply that E-Book Systems intends to announce such products, Web Sites, Applications and Software in your country. These Web Site are controlled and operated by E-Book Systems from its offices within California, United States of America. We make no representation that the products, Web Sites, Applications or Products offered by E-Book Systems are appropriate or available in other locations. Those who choose to access the Web Sites from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
24. GENERAL NOTICES. All notices required by or allowed under this Agreement, including notices of problems and/or inaccuracies in the Web Sites, Applications and Software should be addressed to E-Book Systems, Inc., 5201 Great America Parkway, Suite 320, Santa Clara, California 95054. If applicable law requires that we accept email notices, then you may send us email notice at firstname.lastname@example.org. With respect to our notices to you, we may provide notice of Amendments by posting them on any Web Site and you agree to check for changes. Instead, or in addition, we may give notice by sending email to the email address you provide during registration. Notice shall be deemed given twenty-four (24) hours after it is posted or an email is sent, unless (as to email) the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided during registration. In such case, notice shall be deemed given three (3) days after the date of mailing.
25. NOTICE TO COPYRIGHT AGENT. E-Book Systems respects the intellectual property rights of others and requests that you do the same. Anyone who believes that their work has been reproduced on the Web Sites in a way that constitutes copyright infringement may provide a notice to the designated Copyright Agent for the Web Sites containing the following:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright interest;
- Identification of the copyrighted work claimed to have been infringed;
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit E-Book Systems to locate the material;
- The address, telephone number, and, if available, an e-mail address at which the complaining party may be contacted;
- A representation that the complaining party has 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 representation that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Copyright infringement claims and notices (but not other notices) should be sent to the attention of RICHARD WAN, in any of the following manners:
by mail: E-Book Systems, Inc., 5201 Great America Parkway, Suite 320, Santa Clara, California 95054
by tel: (+65) 6258-6100
by fax: (+65) 6258-7300
by e-mail: email@example.com