Terms of Service
These Terms of Service (“Agreement”) govern your access to and use of the service(s) (“Service”) provided by Graphicly, Inc. (“Graphicly”, “we” or “us”) through our website (the “Site”) or through other communication platforms, including applications on your mobile device (each, an “Application”). Please read this Agreement carefully. By accessing the Service, you agree to be bound by this Agreement. If you do not wish to be bound by this Agreement, you may not access or use the Service. By downloading an Application and any associated media, printed materials, and “online” or electronic documentation (collectively, “Licensed Software”), you agree to be bound by this Agreement and by the applicable End User License Agreement (“EULA”), which is hereby incorporated by reference into this Agreement. If you do not wish to be bound by the EULA or this Agreement, do not use the Licensed Software.
This Agreement may be amended by Graphicly from time to time. If we make material changes to the Agreement, we will notify you through the Application interface or at your primary email address, as specified in your member account information. You agree that such amended Agreement will be effective thirty (30) days after our dispatch of a notice to you, and your continued access to the Site or use of the Service or Application thereafter shall constitute your acceptance of the amended Agreement.
1. Eligibility. The Service is intended solely for access and use by individuals that are thirteen (13) years of age or older and have agreed to this Agreement. By accessing and using the Service, you represent that you are at least thirteen (13) years old. By using the Service, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
3. Use of the Service; Objectionable Material. You must use the Service in a manner consistent with any and all applicable laws and regulations. You may not use any forum available on the Service for advertising to, or solicitation of, other members to buy or sell any products or services. You acknowledge and agree that by using the Service or downloading Products (defined in Section 5.1), you may encounter content that may be regarded as offensive, indecent, or objectionable and that you use the Service and download Products at your sole risk. Graphicly will have no liability to you for offensive, indecent, or objectionable content.
5. Fees; Payments.
1. Conversion Fees. The primary value Graphicly provides publishers, creators and authors is the ability to have their content converted into file formats that are compatible on multiple digital book marketplaces or an application that is compatible on various application stores. For this service, there is an associated fee. These fees are outlined at http://graphicly.com/partners/pricing. For the use of these services, you agree to the fee policies specified through the Service which are hereby incorporated herein. Prices and availability of all Products are subject to change at any time. You must provide Graphicly with valid credit card information or other payment information prior to registering for the Service. You agree that Graphicly may charge fees to your credit card or other payment account for Products that you receive and that you will pay all applicable fees assessed to your Account. Graphicly may also accept payment through gift cards or gift certificates. If the total amount of a transaction is greater than the balance available on any such gift cards or gift certificates, we may refuse the transaction or charge your designated credit card or payment account for the balance. Our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties.
2. Licensed Products. Graphicly provides certain digital books and other related products for a fee (“Products”) via the Graphicly Marketplace and Network. These fees are displayed with the applicable Product, and if you choose to receive Products from us, you agree to the fee policies specified through the Service which are hereby incorporated herein. Prices and availability of all Products are subject to change at any time. You must provide Graphicly with valid credit card information or other payment information prior to registering for the Service. You agree that Graphicly may charge fees to your credit card or other payment account for Products that you receive and that you will pay all applicable fees assessed to your Account. Graphicly may also accept payment through gift cards or gift certificates. If the total amount of a transaction is greater than the balance available on any such gift cards or gift certificates, we may refuse the transaction or charge your designated credit card or payment account for the balance. Our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties.
3. Pre-Orders. Certain Products may be available for pre-order. By pre-ordering such Products, you are authorizing Graphicly to automatically charge your Account and provide access to the Product when it becomes available. You may cancel your pre-order prior to the time the Product becomes available. Not all Products may be available for pre-order.
4. Subscriptions. Certain Services may be available for access on a subscription basis. Not all Services may be available by Subscription. Such Subscription is non-refundable.
6. Licenses; Proprietary Rights.
1. License to the Service. Subject to the terms and conditions of this Agreement, Graphicly grants you a limited, non-exclusive, and revocable license to access and use the Service only to the extent necessary to use the Service as described by Graphicly on the Site. Graphicly reserves the right to change or discontinue the Service (or any feature thereof) at any time, with or without notice.
2. License to Products. Subject to the terms and conditions of this Agreement (including payment of the applicable fees and the Usage Rules in Section 7.3), Graphicly grants you a limited, non-exclusive, and revocable license to access and display Products on each of your devices licensed by Graphicly under the applicable EULA solely for your personal, non-commercial use.
3. Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Service or the Products or make the Service or the Products available to any third party; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service or the Products; (c) you shall not access the Service in order to build a similar or competitive product or service or attempt to access the Service through any unapproved interface; (d) you will not use any device, software, or routine to damage, interfere or attempt to interfere with any application, function, or use of the Service; (e) except as expressly stated herein, no part of the Service or Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; and (f) any future release, update, or other addition to functionality of the Service (if any) shall be subject to the terms of this Agreement unless Graphicly expressly states otherwise. You shall preserve all copyright and other proprietary rights notices on the Products and all copies thereof. The Products may contain security technology that limits your usage of the Products. You agree to use the Products in compliance with the following rules (“Usage Rules”): You may view each Product on only one of your Graphicly-authorized devices at any given time.
4. Proprietary Rights. Graphicly and its licensors own and retain all proprietary rights in the Service and the Products. The Service and Products contain the copyrighted material, trademarks, and other proprietary information of Graphicly and its licensors. Except as expressly specified in this Agreement, the provision of the Service and the Products does not transfer to you or any third party any rights in or ownership of such intellectual property, including, without limitation, any intellectual property rights in any Graphicly or third-party content.
8. Content Posted by Users on the Service.
1. Graphicly Removal. You understand and agree that, to the extent it is able to do so, Graphicly has the right to (but is not obligated to): review any content, communication, information, works of authorship, messages, photos, videos, URLs, profiles and the like (collectively, "Content") that is published, displayed, or transmitted (“posted”) on or through the Service for other users, and delete any such Content for any reason in its sole discretion. You further understand and agree that Graphicly has the right to take any action, including deletion of Content or the barring of access to the Service, in response to conduct or Content that in the sole judgment of Graphicly violates this Agreement or is offensive, illegal, or violates the rights of, harms, or threatens the safety of, other users or third parties. You are solely responsible for the Content that you post on the Service.
2. License; Publisher Content By using Service to convert and distribute content to digital book marketplaces, the Graphicly Marketplace and Network, and/or application stores, you grant Graphicly, during the Term of this Agreement, a worldwide, non-exclusive, royalty-bearing license, under all of Publisher’s Intellectual Property Rights, to (a) reproduce, use, publicly display, publicly perform the Content as part of a Licensed Product, (b) modify and create derivative works, as defined as as being only the content as originally formatted by the Publisher with the addition of functions, such as zooming, panning and other mutually agreed upon changes to the format and content, to be approved in writing by the Publisher, of the Content solely in connection with developing a Licensed Product, and (c) market, publish, sell and distribute Licensed Products.
3. License; User Generated Content 3. License; User Generated Content. By posting Content to any area of the Service or Graphicly Marketplace and/or Network, available to other users (“Publicly Posted Content”), you grant to Graphicly an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, and otherwise use or exploit such Publicly Posted Content and to prepare derivative works of, or incorporate into other works, such Publicly Posted Content, and to grant sublicenses of the foregoing rights. In addition, you represent and warrant that you have the right to grant the foregoing license and to post the Publicly Posted Content and that you will not post any illegal or Prohibited Content (defined below) and will not infringe, misappropriate, violate or contravene any third party rights (including, without limitation, any intellectual property rights).
4. Prohibited Content. The following is a partial list of Content that is prohibited on the Service (“Prohibited Content”), which Graphicly has the right to take into account in taking any action in its sole discretion, including actions to delete or prevent access to Content, to limit or bar access to the Service, or to terminate or limit any relationship between you and Graphicly or the Service. Graphicly reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion for any violation of this provision, including without limitation, removing Prohibited Content from the Service, notifying the appropriate authorities regarding and identifying the source of Prohibited Content and terminating the Accounts of such violators. Prohibited Content includes, without limitation, Content that:
1. is patently offensive to the online community, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
2. bullies, harasses or advocates harassment of another person;
3. includes "junk mail" or "chain letters";
4. promotes or contains information that you know, or should know, is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
5. promotes or contains an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such, or not);
6. contains a virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access to, the Service, Site, or Licensed Software;
7. is obscene;
8. exploits people under the age of 18;
9. provides instructional information about illegal activities;
10. undermines the quality, appeal, or usefulness of the Service; or
11. solicits passwords or personal identifying information of any kind for commercial or unlawful purposes from other members, and engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
9. Copyright Policy. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information unless you have the right to do so. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Site or Service of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Graphicly’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following: 1919 14th St. Suite 319 Boulder, CO 80302.
10. Term. Subject to this Section, this Agreement will remain in full force and effect while you use the Service and/or maintain an Account. You may terminate your Account at any time, for any reason through the appropriate account management page on the device application, if available, or by sending an e-mail to email@example.com. Graphicly has the right to terminate this Agreement, or suspend or terminate your access to the Service, immediately effective upon sending notice to you at the email address you provide in your Account. Upon termination of this Agreement by either party, your right to access and use the Service will terminate immediately. You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to our termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 8 to 18.
11. User Disputes and Release. You are solely responsible for your interactions with other Users. Graphicly reserves the right, but has no obligation, to monitor, or take any action Graphicly deems appropriate regarding, disputes between you and other members. To the extent permitted under applicable laws, you hereby release Graphicly from any and all claims or liability related to: (a) any Content posted on the Service; (b) the conduct, whether online or offline, of any other user; and (c) termination or denial of access to or use of the Service. You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”1. Warranty Disclaimer. To the extent permitted under applicable laws, the Service and Products are provided "As-is" and as available and Graphicly expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement. Graphicly does not guarantee and does not promise any specific results from the use of the Service or Products. Graphicly makes no warranty that the Service will be uninterrupted, free of viruses or other harmful code, timely, secure, or error-free. You agree that Graphicly is not responsible for the timeliness, deletion, mis-delivery, or failure to store any communications or personalization or preference settings. Graphicly does not assume any obligation to monitor activities conducted on the Service. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
2. Limitation on Liability. To the extent permitted under applicable laws, Graphicly shall not be liable to you, or any third party, for any lost profits, indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to your use of the Service, Site, Products, or Licensed Software under this Agreement, even if Graphicly has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Graphicly’s liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the greater of (1) an amount equal to the amounts paid by you to Graphicly in the twelve (12) months preceding the claim; and (2) Fifty U.S. Dollars (US $50). The existence of one or more claims will not serve to enlarge this limit. You acknowledge and agree that the limitations of Graphicly’s liability are (a) reasonable in light of your ability to use the Service, Site, Products, or Licensed Software at the fees charged by Graphicly (if any), and (b) essential and fundamental parts of this agreement which are necessary to induce Graphicly to enter into this agreement. Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply to you.
3. Indemnity. You agree to indemnify and hold Graphicly, its subsidiaries, affiliates, officers, agents, and other partners and their employees, harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney's fees, brought by any third party arising out of or relating to: (a) your use of the Service, Site, Products, or Licensed Software, or (b) arising from your breach of this Agreement.
4. Electronic Communications. The communications between you and Graphicly use electronic means, whether you visit the Site, use an Application, or send us emails, or whether Graphicly posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Graphicly in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Graphicly provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
6. Copyright/Trademark Information. Copyright © 2010, Graphicly Inc. All rights reserved. The trademarks, logos and service marks (“Marks”) displayed on the Service are our property or may be the property of third parties. Certain uses of Marks require the permission of the owner. If you are interested in using our Marks for any purpose, please contact firstname.lastname@example.org to determine whether such a use requires authorization.
7. Disclosures. Graphicly is located at 1919 14th St. Suite 319 Boulder, CO 80302. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Current providers of such protections can be found at: http://www.en.wikipedia.org/wiki/List_of_Content_Control_Software.
These Terms of Service were last updated on April 11, 2012.