This Software Services and User License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between Licensor LLC d.b.a EditionGuard ("Licensor") and the person or entity identified on the Order Form as the licensee of the Software ("Subscriber").
Whereas, Licensor grants access to the software and related services for conducting eBook sales, distribution or rental to business on the Internet with DRM capabilities a service known as "EditionGuard" (hereinafter referred to as the “Service”).
Whereas, Subscriber desires to utilize these Services, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
LICENSOR SHALL PROVIDE THE SOFTWARE AND RELATED SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT SUBSCRIBER ACCEPTS AND COMPLIES WITH THEM.
BY CHECKING THE "ACCEPT" BOX ON THE SIGNUP FORM, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT SUBSCRIBER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU ARE LEGALLY ABLE TO ENTER INTO A BINDING AGREEMENT IN THE JURISDICTION IN WHICH YOU RESIDE; AND (II) IF SUBSCRIBER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUBSCRIBER AND BIND SUBSCRIBER TO ITS TERMS. IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE RELATED SOFTWARE AND SERVICES TO SUBSCRIBER AND YOU MUST NOT ACCESS OR FURTHER USE THE SOFTWARE, SERVICES OR DOCUMENTATION.
1. License to Receive the Service
Grant. Licensor hereby grants the Subscriber identified on the Order Form attached hereto a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access and to permit Authorized Users to use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved.
Scope. The license granted to Subscriber hereunder is limited to authorized uses of the Application for the display and retrieval of the Service. By using these and associated Services, Customer agrees to be bound by the terms of all end user licenses.
2. Fees and Invoicing
Fees. In exchange for the license granted above and in consideration of the performance of Service, commencing on the Billing Start Date, Subscriber shall pay Licensor monthly in advance the amount set forth in the EditionGuard customer database as such records are amended from time to time during the term of this Agreement.
Subscriber shall receive a confirmation letter via e-mail after signing up for the service online. Following sign up, subscriber may opt to evaluate the service for a trial period of thirty (30) days free of charge for non-commercial testing purposes. If the subscriber wishes to use the service for actual commercial operations during the trial period, a full subscription must be purchased. Once the trial period has ended, subscriber shall be billed on a monthly basis for any fees due.
Subscriber is responsible for all activities and charges resulting from Subscriber's use of the Service. Subscriber agrees to pay all fees and charges incurred by Subscriber and set forth in the monthly billing statement. Subscriber acknowledges that no refunds will be given by Licensor in the event that Subscriber's account is terminated by Licensor or Subscriber mid-term. In the event of a breach of security, Subscriber will remain liable for any unauthorized use of the Services until Subscriber notifies Licensor by sending an e-mail with account information to firstname.lastname@example.org.
In resolution of any disputes regarding the charges resulting from the Subscriber’s use of the Service, the billing and accounting records of Licensor will be deemed the only worthy evidence.
Current rates for using the Service may be obtained on our web site at www.editionguard.com. Licensor reserves the right to change fees, surcharges,monthly membership fees or to institute new fees at any time. In addition, Licensor may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Subscriber upon sign up.
If Licensor does not receive the full amount of Subscriber's Service account balance within seven (7) days of invoice date, a late charge equal to 1.5% per month or highest amount allowed by law per month will be added to Subscriber's bill and shall be due and payable. Subscriber shall also be responsible for all attorney and collection fees arising from Licensor's efforts to collect any unpaid balance of Subscriber's account(s), and Licensor may terminate Subscriber's account immediately without further notice to Subscriber.
All services renew automatically. Subscriber may opt out of automatic renewals by contacting email@example.com.
Subscriber will be responsible for, and will promptly pay all sales, use, excise, value-added or similar taxes, assessments, or duties imposed by any governmental agency based on or with respect to any Services or goods provided by Licensor to Subscriber.
3. Copyright Protection, Account Management, Use Restrictions
Subscriber agrees that the Service and related software, including without limitation the editorial coding and metadata contained therein, are the property of Licensor or Licensor’s licensors.The works and databases found on this Service are protected by applicable copyright laws.
Subscriber agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users.
Subscriber shall not reverse engineer, decompile or disassemble any part of the Service. Subscriber further agrees that neither Subscriber nor any Authorized User shall store copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without Licensor’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service
(a) in oral and with proper attribution to the respective Service non-electronic
written communications with clients and other employees, and
(b) in email and instant messaging communications with other employees and/or securities professionals.
Without limiting the foregoing, under no circumstances shall distribution under this Section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Subscriber agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or Licensor.
Subscriber acknowledges the importance of not sharing their log-in information with third-parties or other users. At such time Subscriber believes ANY unauthorized use of their account and these Services have been made, they will immediately inform Licensor of suspected breach.
Licensor shall have no obligations with respect to the content available on or through the Service, including, but not limited to, any duty to review or monitor any such content. Licensor reserves the right to block any Subscriber that violates any of the above-stated terms, or which in Licensor's sole discretion, Licensor deems objectionable or offensive, or otherwise violates a law or Licensor policy, or, in the alternative, to terminate this Agreement.
Subscriber acknowledges that in providing the Service, Licensor utilizes: (a) the name, logo and domain name of the product names associated with the Service and other trademarks; (b) certain audio and visual information, documents, software and other works of authorship; and (c) other technology, hardware, products, processes, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information and that the Licensor Technology is covered by intellectual property rights owned or licensed by Licensor. Other than as expressly set forth in this Agreement, no license or other rights in the Licensor IP Rights are granted to Subscriber, and all such rights are hereby expressly reserved.
4. Uptime, Service Suspensions, and Exclusions
Licensor will use commercially reasonable efforts to make the Service available with a Service Uptime Percentage of at least 99% during a Service Year.
You acknowledge that your access to and use of the Services may be temporarily suspended for the duration of any unanticipated or unscheduled Downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions
We shall be entitled, without any liability to you, notwithstanding our Service Year Uptime commitments, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; (c) due to factors that are outside of our reasonable control, including any force majeure event or Internet-wide disruption or related problems beyond the demarcation point of the Services; (d) that are caused by you or any third party; (e) that result from the failure of your equipment, software or other technology and/or third party equipment, software or other technology; (f) that arise from our suspension and termination of your right to use the Services in accordance with this Agreement. We shall have no liability whatsoever for any damage, liabilities, losses or any other consequences that you may incur as a result of disruption due to any Excluded Service Suspensions. To the extent we are able, we will endeavor to provide you email notice of any planned Excluded Service Suspensions.
ACCESS TO THE SYSTEM IS PROVIDED "AS IS." LICENSOR MAKES NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO THE SYSTEM, ITS CONTENT, ANY INFORMATION STORED THEREIN OR OBTAINED THEREBY. TECHNICAL DIFFICULTIES COULD BE ENCOUNTERED IN CONNECTION WITH THE SYSTEM. THESE DIFFICULTIES COULD INVOLVE, AMONG OTHERS, FAILURES, DELAYS, MALFUNCTION, SOFTWARE EROSION OR HARDWARE DAMAGE, WHICH DIFFICULTIES COULD BE THE RESULT OF HARDWARE, SOFTWARE OR COMMUNICATION LINK INADEQUACIES OR OTHER CAUSES. SUCH DIFFICULTIES COULD LEAD TO POSSIBLE ECONOMIC AND/OR DATA LOSS. IN NO EVENT WILL LICENSOR OR ANY OF THEIR AFFILIATES, EMPLOYEES, OFFICERS OR DIRECTORS BE LIABLE FOR ANY POSSIBLE LOSS, COST OR DAMAGE INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES WHICH MIGHT OCCUR AS A RESULT OF OR ARISING OUT OF USING, ACCESSING, INSTALLING, MAINTAINING, MODIFYING, DEACTIVATING OR ATTEMPTING TO ACCESS THE SYSTEM OR OTHERWISE.
6. Disclaimer of Liability
IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THESE SERVICES OR RELATED SOFTWARE. YOU ARE PROVIDED THESE SERVICES AND RELATED SOFTWARE PURSUANT TO THE SOFTWARE LICENSE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE'S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE PURSUANT TO THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.
(a) Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold Licensor harmless from and against any and all third party claims for damages, judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which directly relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Licensor's use of any Subscriber Content that Subscriber provides to Licensor and Licensor uses in the provision of any Services.
(b) Licensor Infringement Indemnity. Licensor, at its expense, will defend, indemnify, and hold Subscriber harmless from and against any and all third party claims for damages, judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Subscriber which directly relate to a claim, action, lawsuit, or proceeding made or brought against Subscriber by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a “Subscriber Claim”) by way of Subscriber's use of the Service that Licensor provides to Subscriber.
7. Disclaimer of Liability
IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THESE SERVICES OR RELATED SOFTWARE. YOU ARE PROVIDED THESE SERVICES AND RELATED SOFTWARE PURSUANT TO THE SOFTWARE LICENSE AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND AT LICENSEE'S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL BE SOLELY TO LICENSEE PURSUANT TO THAT AGREEMENT AND SUBJECT TO ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.8. Governing Law.