These TOU apply to the web site available at http://www.bookish.com, which is operated by Bookish LLC ("BOOKISH," "we," "us" or "our"), and to interactive features, downloads, applications and widgets that post a link to these TOU, regardless of whether accessed via computer, mobile device or otherwise (collectively, the "Site").
By accessing or using this Site, you agree to these TOU which constitute a legally binding contract between you and BOOKISH. If you do not agree with these TOU, you should not register as a member on the Site and should leave the Site immediately.
Unless otherwise explicitly specified, this Site and all materials that are included in or are otherwise a part of the Site (including present and future versions), including, without limitation, graphics, layout, text, instructions, images, books, periodicals, audio, videos, widgets, designs, advertising copy, compilations, and the trademarks, logos, domain names, trade names, service marks and trade identities; any and all copyrightable material (including source and object code); the "look and feel" of the Site, the compilation, assembly and arrangement of the materials of the Site; and all other materials related to the Site (collectively, the "Materials") are owned, controlled or licensed by BOOKISH, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties.
The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express permission of BOOKISH, unless and except as is expressly provided in these TOU. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional copyright notices, information, or restrictions contained in any part of the Site.
You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard search engine or activity or your use of a standard internet browser), nor will you (b) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any public or commercial purpose except as specifically permitted by these TOU or BOOKISH.
The Site may provide you and others with the opportunity to participate in forums, blogs, message boards, social networking, social communities and other communication functionality and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials, including, without limitation, social features such as following users, authors, books, or topics, creating book lists, photographs, videos, writings, computer graphics, testimonials, book and periodical reviews, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, "User Content") to BOOKISH, the Site and other third parties.
Except as otherwise provided in this TOU, you or the owner of any content that you post to our Services retain ownership of all rights, title, and interests in that content. However, by posting content on a Service, you grant us and our assigns, agents, and licensees the irrevocable, royalty free, perpetual, worldwide right and license to use, reproduce, modify, display, remix, perform, distribute, redistribute, adapt, promote, create derivative works, and syndicate this content in any medium and through any form of technology or distribution. We own all rights, title, and interests in any compilation, collective work or other derivative work created by us using or incorporating your content (but not your original content). You agree that you either: (i) own the rights to the User Content you submit and the right to grant all of the rights and licenses in these TOU; or (ii) you have all necessary rights and licenses from the owner(s) of these rights to enter into these TOU and grant BOOKISH these licenses. Upon BOOKISH's request, you will furnish BOOKISH any documentation, substantiation or releases necessary to verify your compliance with these TOU. You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of User Content or other information may not be secure, and you should consider this before submitting or distributing any information, including, without limitation, User Content to BOOKISH, the Site or other third parties.
You grant to BOOKISH the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, syndicate, sublicense, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever in all formats; on or through any media, software, formula or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that BOOKISH is free to use any ideas, concepts, know-how or techniques contained in any User Content you send to the Site or BOOKISH, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products and or services using such User Content; or creating informational articles based on or advertising our products and services, and without remuneration of any kind. You further perpetually and irrevocably grant BOOKISH the unconditional right to use your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or remuneration to you. You also grant to BOOKISH the right to sublicense and authorize others to exercise any of the rights granted to BOOKISH under these TOU; and each such third party will be entitled to benefit from the rights and licenses granted to BOOKISH under these TOU. You further authorize BOOKISH to publish your User Content in a searchable format that may be accessed by users of the Site and other websites. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you. If you sign in to BOOKISH through another web service or widget provided by a third party, such as Facebook or Twitter, your User Content posted on BOOKISH may appear on those third party sites and other sites with whom you or they have access and share content.
You agree that BOOKISH has no obligation to monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensees' licensed rights to your User Content. You further acknowledge and agree that BOOKISH may review, monitor, display, accept or exploit any User Content, and BOOKISH may, in its sole discretion, delete, move, re-format, edit, distribute, block, alter, distort, remove or refuse to exploit User Content without notice or liability to you. BOOKISH reserves the right to treat User Content on the Site, or on certain portions of the Site, as content stored at the direction of users for which BOOKISH will not exercise editorial control except to enforce the rights of third parties and the content restrictions set forth below in our Community Rules when notice of such violations are brought to BOOKISH's attention. We may not maintain user Content posted on the Site for any particular period of time, we may delete it at our discretion and you have no right to access or control any User Content that you provide. You understand that BOOKISH is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
As a participant on the Site, you become a member of the Bookish community and you agree that these community rules ("Community Rules") are here to help you understand the conduct that is expected when you participate on the Site. Your participation in the Community is subject to all the TOU, including these Community Rules. Please follow these Community Rules when participating on the Site, including, without limitation, when you upload any User Content, send messages or other materials to other users, or participate in discussions on the Site:
User Content must be yours. All User Content must be original with you, not copied from someone else's work, and you must have all rights in the User Content and have obtained from all persons who contributed in any way or have any rights to your User Content or otherwise appear in the User Content to upload, distribute or embed (as applicable) the User Content on the Site and elsewhere. You may choose to upload pictures of yourself in your Profile. If you choose to upload photos, videos or other content that features another person, do so with that person’s express permission to submit it.
Though nudity is natural, not everyone wants to see it. The same goes for hateful things, spam, and irrelevant photos. So steer away from naked people, meanness, grossness, inappropriateness and anything else that you wouldn't want to see when you're exploring.
Don't upload, post or distribute third party materials. Your User Content should not contain any visible logos, phrases or trademarks or other third party materials. Do not use any User Content that belongs to other people and pass it off as your own. This includes any content that you might have found elsewhere on the Internet.
Do we hear music? Your User Content may not contain any music unless the work and performance is original with you and/or you have all rights to the musical work (including any performances). No jingles, sampling or otherwise.
Keep it relevant. YYour User Content should relate to the content on the Site, such as being about books and authors and should be intended to add to the discussion and community on the Site — it should not include irrelevant topics or postings.
Please follow codes of social decency. Express yourself with non-offensive individual self–expression. Be respectful of others' opinions and comments so we can continue to build a Community for everyone to enjoy. If you think your User Content might offend someone, chances are it probably will and it doesn't belong on the Community. Cursing, flaming, harassing, stalking, posting insulting comments, personal attacks, gossip or similar actions are prohibited. Your User Content may not threaten, abuse or harm others. Your User Content may not include any negative comments that are connected to race, national origin, religion, gender, sexual orientation or physical handicap or that are defamatory, slanderous, indecent, obscene, pornographic or sexually explicit.
Do not use the Community for commercial purposes. Your User Content may not advertise or promote a product or service. You may not use your User Content to raise money for anyone or for a pyramid or other multi-tiered marketing scheme.
Do not upload, post or distribute User Content that is inappropriate or illegal. Your User Content may not promote any illegal activity. If someone could go to jail for taking action suggested by your User Content, don't upload, post or distribute it to a third party using Site features. If you do upload, post or otherwise distribute User Content that is illegal or in violation of applicable law, we reserve the right to take action that we deem appropriate, in our sole discretion, including reporting you to the proper governmental authorities.
No violence. Your User Content may not promote violence or describe how to perform a violent act.
Be honest and do not misrepresent yourself or your User Content. Do not impersonate any other person, user or company by uploading, posting or distributing User Content that you know or suspect is false, fraudulent, deceptive, inaccurate, misleading or that misrepresents your identity or affiliation with a person or company.
Others are watching. We hope that you will use the Community to exchange information and User Content and have discussions with other members. Please remember that the Community is a public forum and User Content, including, without limitation, your photograph, username, bio and interests that you post on the Community will be accessible and viewable by anyone on the Internet, including those who have not registered as Community members. Think carefully about the information you choose to post.
Don't share other people's personal information. Your User Content should not reveal another person's address, phone number, e-mail address, credit card number or any information that may be used to track, contact, or impersonate that individual or that is personal in nature.
Don't damage the Site or anyone's computers.User Content may not contain, and you are prohibited from uploading viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Site or any computer system.
You understand and acknowledge that BOOKISH may from time to time monitor or review the Community, provided, however, that BOOKISH has no obligation to monitor the content of the Community and assumes no responsibility for libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, illegality or inaccuracy contained in any information transmitted to or from any such locations on this Site. BOOKISH reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, or to edit, refuse to send or to remove any information or materials, in whole or in part, that in its sole discretion are objectionable or in violation of these Community Rules.
Community Policing: As part of the Community, we hope you enjoy your experience and are comfortable with interacting and viewing the Site. There may be Community tools in effect that allow all Community members to "flag" content that they deem inappropriate, offensive or that makes them uncomfortable (for example, if offered, the Community tools may include an "Inappropriate Flag" link with which a Community member can flag content as potentially offensive).
We reserve the right, in our sole discretion, to remove or disable content that is flagged with an "Inappropriate Flag" or any content that we find, in our sole discretion, violates these Community Rules or any other terms of these TOU, or that we otherwise find objectionable.
We reserve the right to disable or otherwise terminate the accounts of users that we determine to be in violation of these Community Rules or any other of the terms set forth in these TOU, or that post content which is flagged with an "Inappropriate Flag."
In order to participate actively on the Site, you will have to become a registered member or authenticate your account with a third party, such as Facebook or Twitter, and create a unique personal profile ("Profile"). When you become a registered member of the Site, you agree only to provide true, accurate, current and complete registration information and, if such information changes, you will promptly update the relevant registration information, including on your Profile. If you register with us, you agree to accept responsibility for all activities that occur under your account, if any. You are responsible for maintaining the confidentiality of your password, if any, and for restricting access to your computer (or other Internet access device, as applicable) so that others may not access the password protected portion of the Site using your username in whole or in part. BOOKISH reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability. You agree to notify us immediately of any breach of security or unauthorized use of your account.
Your Profile may not include any form of prohibited User Content, as outlined above in the Community Guidelines or elsewhere on the Site. Despite this prohibition, information, materials, products or services provided by other users (for instance, in their Profiles) may, in whole or in part, be unauthorized, impermissible or otherwise violate these TOU, and we assume no responsibility or liability for this material. We do not review Profiles to determine if an appropriate party created them, and we are not responsible for any unauthorized Profiles that may appear on the Site.
NOTICE TO THIRD PARTY SITES: Any of our Materials made available in connection with your site, or otherwise, by our Widgets, third party widgets or otherwise is our exclusive property and no grant of any intellectual property rights is made by us. We retain the right to demand that you cease any use of our Materials upon notice.
b) MOBILE SERVICES
We currently provide our mobile services without charge, but please be aware that your carrier's normal rates and fees, such as text messaging fees, will still apply.
You represent and warrant that: (i) all information you provide to BOOKISH is accurate and complete; and (ii) you hold and will continue to hold all rights necessary to enter into and perform your obligations under these TOU. You also agree that you will be responsible for obtaining and maintaining all Internet access services, computer hardware and other equipment needed for access to and use of the Site and you will be responsible for all charges related thereto.
The Site contains links to products that you can purchase from third party merchants. You agree that BOOKISH's and said merchants’ sole and exclusive maximum liability arising from any product sold via access to the Site shall be the price of the product ordered.
BOOKISH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO PRODUCTS LINKED TO BY THE SITE AND/OR SOLD VIA ACCESS TO THE SITE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL BOOKISH, ITS PARENT COMPANIES AND AFFILIATED ENTITIES OR THE DIRECTORS, OFFICERS, EMPLOYEES OR OTHER REPRESENTATIVES OF EACH OF THEM BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES RELATED TO ANY PRODUCT SOLD THROUGH OR IN CONNECTION WITH THIS SITE.
In the event a product is listed at an incorrect price or with incorrect information, the merchant offering such product shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. Said merchant shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, said merchant will issue a credit to your credit card account in the amount of the charge.
Your receipt of an electronic or other form of order confirmation does not signify BOOKISH's or said merchant’s acceptance of your order, nor does it constitute confirmation of said merchant's offer to sell. Merchants operating via Bookish reserve the right at any time after receipt of your order to accept or decline your order for any reason. Each such merchant reserves the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. A merchant may require additional verifications or information before accepting any order. A merchant may automatically charge and withhold the applicable sales tax for orders. Otherwise, you are solely responsible for all sales taxes, or other taxes, on orders shipped to you.
You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others and in all other online activities.
You may not use the Site for any purpose or in any manner that infringes the rights of any third party. BOOKISH encourages you to report any content on the Site that you believe infringes your rights. Only the owner of the intellectual property or person authorized to act on behalf of the owner can report potentially infringing content. If you have a good faith belief that content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow the procedures set forth below.
In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), BOOKISH has a designated agent for receiving notices of copyright infringement and BOOKISH follows the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide BOOKISH's copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. § 512: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact the complaining party; (e) a statement 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 (f) a statement 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.
It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.
We reserve the right to terminate the accounts of users whom we deem in our sole discretion to be infringers.
BOOKISH will endeavor to provide you with notice if your materials have been removed based on a third-party complaint of alleged infringement of the third party’s intellectual property rights.
BOOKISH's copyright agent for notice of claims of copyright infringement on or regarding the Site can be reached as follows:
Name: Copyright Administrator
7 West 18th St.
New York, NY 10011
Phone number:212-947-7218 Ext. 150
E-mail address: DMCA@bookish.com
The Site may contain or offer contests, sweepstakes or other promotions, which may be governed by a separate set of rules that describe the contest, sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor's requirements of you in connection with the applicable contest, sweepstakes or promotion.
There may be links from the Site, or communications you receive from the Site, including, without limitation, from advertisers or sponsors, to third party web sites or our Site may include third party content that we do not control, maintain or endorse. Accessing those third party sites requires you to leave the Site and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites.
YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE SITE, INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. BOOKISH ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF SERVICE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT.
BOOKISH grants you the revocable permission to link to the Site; provided, however, that your web site, or any third party web sites that link to the Site: (a) must not frame or create a browser or border environment around any of the content on the Site or otherwise mirror any part of the Site without BOOKISH’s express written consent; (b) must not imply that BOOKISH or the Site is endorsing or sponsoring it or its products, unless BOOKISH has given its prior written consent; (c) must not present false information about BOOKISH or its products or services; (d) must not use any BOOKISH trademarks without the prior written permission from BOOKISH; (e) must not contain content that in BOOKISH’S sole opinion could be construed as distasteful, offensive or controversial or otherwise objectionable; and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these TOU. By linking to the Site, you agree that you are now and will continue to be in compliance with BOOKISH’s linking requirements.
Notwithstanding anything to the contrary contained in these TOU, BOOKISH reserves the right to prohibit linking to the Site for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.
While we are looking forward to receiving your materials when we specifically ask for them or invite you to post them, it is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, BOOKISH does not accept unsolicited manuscripts or story ideas sent to it through its Site, and take no responsibility for any manuscript or ideas so transmitted.
THE SITE, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN "AS IS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, BOOKISH AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE "BOOKISH PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITE; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITE; (C) THE WIDGETS AND OTHER DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITE; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITE; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO BOOKISH OR VIA THE SITE. IN ADDITION, THE BOOKISH PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE BOOKISH PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE BOOKISH PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE IS AT YOUR SOLE RISK. THE BOOKISH PARTIES DO NOT WARRANT THAT YOUR USE OF THIS SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE BOOKISH PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THESE TOU.
BY ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.
YOU UNDERSTAND AND AGREE THAT BOOKISH LIMITS ITS LIABILITY IN CONNECTION WITH YOUR USE OF THE SITE AS SET FORTH BELOW:
UNDER NO CIRCUMSTANCES WILL THE BOOKISH PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITE; (B) THE MATERIALS; (C) THE WIDGETS AND OTHER DOWNLOADABLE ITEMS; (D) USER CONTENT; (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE BOOKISH PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITE; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITE'S TECHNICAL OPERATION; AND/OR (I) ANY DAMAGE TO ANY USER'S COMPUTER, HARDWARE, COMPUTER SOFTWARE, MOBILE DEVICE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE BOOKISH PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT, INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE. IN NO EVENT WILL THE BOOKISH PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE BOOKISH PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED U.S. $10.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF BOOKISH'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE BOOKISH PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE BOOKISH PARTIES.
YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY.
BY ACCESSING A SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
You agree to defend, indemnify and hold the BOOKISH Parties harmless from and against any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements and expenses, including attorneys' costs and fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) User Content; (b) your use of the Site or activities in connection with the Site; (c) your breach or anticipatory breach of these TOU; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; and/or (g) the BOOKISH Parties' use of your information. You will cooperate as fully required by the BOOKISH Parties in the defense of any claim. Notwithstanding the foregoing, the BOOKISH Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action that are brought against them under the terms and provisions of this Section. Further, the BOOKISH Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the BOOKISH Parties.
Hold Harmless of Service Provider
A third-party service provider (the “Service Provider”) may provide the technology and hosting for aspects of this Site. Anything in the foregoing to the contrary not withstanding, by participating on this Site you agree to indemnify and hold harmless the Service Provider on all matters related to your interaction with others using this Site and participation with this Site. As such, the Service Provider is a third-party beneficiary to your agreement with these TOU.
BOOKISH reserves the right to terminate your access to and use of the Site in its sole discretion, without notice and liability, including, without limitation, if BOOKISH believes your conduct fails to conform with these TOU. BOOKISH also reserves the right to investigate suspected violations of these TOU and any violation, or potential violation, of these TOU may be referred to law enforcement authorities.
Upon termination of your access to the Site, or upon demand from BOOKISH, all rights granted to you under these TOU will cease immediately, and you agree that you will: (a) immediately discontinue use of the Site; and (b) destroy all materials obtained from the Site and all related documentation.
The Site is intended for U.S. residents only. The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject BOOKISH to any registration requirement within such jurisdiction or country. BOOKISH controls and operates the Site from offices located in the State of New York, United States of America and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in any location outside of the United States. Anyone using or accessing the Site from other locations does so on their own initiative and are responsible for compliance with United States, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service or other feature to any person, geographic area, or jurisdiction, at any time and in our sole discretion.
Special Provisions Applicable to Users Outside the United States: We strive to create a global community with consistent standards for everyone, but we also strive to respect local laws. If you use the Site and reside out outside the United States, by using the Site you consent to having your personal data transferred to and processed in the United States.
Software related to or made available by this Site may be subject to United States export controls. Thus, no software from the Site may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, North Korea, Iran, Syria or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to this Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
THESE TOU AND THE INTERPRETATION OF THESE TOU WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES, AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. YOU AGREE THAT JURISDICTION OVER AND VENUE IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SITE, THE USE OR ACCESS THEREOF, OR THESE TOU SHALL BE IN THE APPLICABLE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NY. YOU HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE APPLICABLE FEDERAL AND STATE COURTS LOCATED IN NEW YORK, NY FOR ANY SUCH LEGAL PROCEEDING. YOU AGREE THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE SITE MUST BE COMMENCED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR ELSE YOU AGREE YOU HAVE WAIVED ANY SUCH CLAIM.
By your use of the Site, you agree that any dispute or claim arising out of or in connection with any provision of this TOU or your use of the Site will be finally settled by binding arbitration in New York, NY, in accordance with the rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision. Any claim or dispute between the parties shall be brought in a party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
The failure of BOOKISH to act with respect to a breach of these TOU by you or others does not constitute a waiver and will not limit BOOKISH's rights with respect to such breach or any subsequent breaches. No waiver by BOOKISH of any of these TOU will be of any force or effect unless made in writing and signed by a duly authorized office of TOU. Neither the course of conduct between the parties nor trade practice will act to modify these TOU. BOOKISH may assign its rights and duties under these TOU to any party at any time without any notice to you.
If any provision of these TOU is found to be unenforceable for any reason, then that provision will be deemed severable from these TOU and will not affect the validity and enforceability of any remaining provisions. BOOKISH reserves the right to modify or add to these TOU at any time without prior notice ("Updated TOU"). You agree that we may notify you of the Updated TOU by posting it on this Site so that it is accessible via a link on the home page, and that your use of the Site after we have posted the Updated TOU (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated TOU. Therefore, you should review this TOU before using the Site. The Updated TOU will be effective as of the time of posting, or such later date as may be specified in the Updated TOU, and will apply to your use of the Site from that point forward.
“e-Reader” means the software application licensed by Retailer to be used to display Digital Content to Users on their electronic reader devices.
“Content” means the content available at the Online Retail Store, including Digital Content.
"Digital Content" means such copyrighted books, audiobooks, and other proprietary works in digital format that are offered at Online Retail Store from time to time by Retailer.
“Interactive Services” means interactive services at the Online Retail Store. The scope of these services may change from time to time, with or without notice. A User is using Interactive Services if the user views or participates in a book club, posts a review, sends a customer comment, creates a list, creates a profile, submits any User Created Content or otherwise participates in any interactive feature.
"Interactive Services User" means any User that uses Interactive Services.
“Online Retail Store" means Retailer’s electronic storefront through which a User can shop for Products and Digital Content or other items offered by Retailer or third parties and manage the User’s Digital Content and account settings.
“Software” means the e-Reader, other software and information available on the Online Retail Store, and the digital rights management included with certain Digital Content.
"User Created Content" means any information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material that a User posts, publishes or communicates through the Interactive Services.
2. LICENSES AND RESTRICTIONS
In addition to any other restrictions contained or referenced herein, a User may not:
• create any derivative of any Digital Content;
• modify, download (other than page caching, or with respect to Digital Content as set out in Section 13 below), reproduce, copy, or resell Digital Content or any portion or derivative thereof;
• commercially use the e-Reader, the Digital Content, or any portion or derivative thereof;
• disassemble, reverse engineer, emulate, decompile, or tamper with, the e-Reader, Digital Content, or any portion or derivative thereof;
• rent, loan, sell, lease, license, sublicense, transfer, transmit, network, forward, reproduce, display, distribute, publish, or otherwise make any of the Digital Content available to any third party;
• copy or download any User's account or profile information for the benefit of any third party;
• enable high volume, automated, electronic processes that apply to the Online Retail Store or its systems, the Content or any portion or derivative thereof;
• use any robot, spider, data miner, crawler, scraper or other automated means to access or index the Online Retail Store or its systems, the Content, the Products or any portion or derivative thereof for any purpose;
• interfere or attempt to interfere with the proper working of the Online Retail Store;
• bypass any Retailer measures used to prevent or restrict access to any portion of the Online Retail Store, the Content or any portion or derivative thereof;
• frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Retailer;
• use Retailer’s name, trademarks, services marks or logos in any meta tags or any other "hidden text";
• compile, repackage, disseminate or otherwise use data extracted from the Online Retail Store or the e-Reader;
• attempt to gain unauthorized access to any portion or feature of the Online Retail Store, or any other systems or networks connected to the Online Retail Store or to any Retailer server, or to any of the services offered on or through the Online Retail Store, by hacking, password “mining” or any other illegitimate means;
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal User sends to Retailer on or through the Online Retail Store or any service offered on or through the Online Retail Store;
• post Digital Content to any third party website or provide Digital Content to others by any other means, such as an intranet system, a public or private hosting service, peer-to-peer sharing, or RSS feeds;
• pretend that User is, or that User represents, someone else, or impersonate any other individual or entity;
User may not transfer the Digital Content from one electronic reading device to another without maintaining the applicable digital rights management solution for that Digital Content. User may not bypass, modify, defeat or circumvent any of the security features, special rules or other applications that protect the Digital Content.
Any unauthorized use of the Online Retail Store, the Content, the Product or any portion or derivative thereof shall terminate any license or permission granted by Retailer.
All rights not expressly granted to User hereunder are reserved to Retailer and/or Retailer’s suppliers and/or their respective licensors. Retailer reserves the right to modify or discontinue the offering of any Digital Content at any time.
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Marks”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Marks, used at the Online Retail Store and in connection with the e-Reader are owned, controlled or licensed by or to Retailer, and are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. The Marks of Retailer and any entity providing Content or Product to Retailer and their respective licensors (collectively, the “Retailer Providers”) may not be used without prior written consent of Retailer or Retailer Providers, as the case may be.
User acknowledges that the Online Retail Store contains Content, including Digital Content, as that term is defined herein, that is protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies, now existing and/or hereinafter developed. All Content, including Digital Content, is or may be copyrighted as a collective work under the U.S. copyright laws, and Retailer owns a copyright in the selection, coordination, arrangement, and enhancement of such Content on the Online Retail Store.
Users may generally browse, preview, or search Digital Content without having to purchase or download the Digital Content. In order to be able to purchase and/or download Digital Content, a User must first open a Online Retail Store account; provide valid credit card information and the User's billing address to Retailer as stated in Section 5; and install the e-Reader onto their computer or electronic reading device(s), if the e-Reader is not already preloaded.
There may be separate end user license agreements a User may need to accept in connection with specific hardware or software the User may use to interact with the e-Reader. Such User’s failure to accept and agree to the terms of those agreements may prevent, restrict and/or limit the User’s ability to use the e-Reader.
Your purchased Digital Content will be stored in, or accessible from, Your content library at the Online Retail Store. You can access Your content library by signing into Your Online Retail Store account. You may also transfer the Digital Content from Your content library to no more than a total of five (5) other electronic devices that You own. You may not transfer the Digital Content from one electronic reading device to another without maintaining the applicable digital rights management solution for that Digital Content. You may not bypass, modify, defeat or circumvent any of the security features, special rules or other applications that protect the Digital Content.
Users may establish a Online Retail Store account. Digital Content is only available for purchase by Users with a credit card that has a United States billing address. By opening a Online Retail Store account for Digital Content, a User represents and warrants to Retailer that User resides in the United States and that User is capable of entering into a contract under the laws in effect in the United States.
Unless expressly stated in writing by Retailer otherwise, Retailer is a distributor and not a publisher of Content, including Digital Content. Retailer has no editorial control over such Content. Retailer does not undertake and is not obligated to review Content, including Digital Content and User Created Content. Retailer does not make any representation, warranty or guarantee on the accuracy, completeness, or usefulness of any third party Content. Under no circumstance shall Retailer be liable for any loss, damage or harm caused by a User's reliance on or use of Digital Content or any information obtained through the Online Retail Store. It is the responsibility of User to evaluate the accuracy, completeness or usefulness of the information, opinions, advice, or Content, including Digital Content and User Created Content, available through the Online Retail Store.
5. SALES TERMS
Prior to the purchase of any Product or Content on our Online Retail Store, a User must provide Retailer with a valid credit card number and associated payment information including all of the following: (i) User’s name as it appears on the card, (ii) User’s credit card number, (iii) the credit card type, (iv) the date of expiration and (v) any activation numbers or codes needed to charge your card. By submitting that information to Retailer, User hereby agrees that User authorizes Retailer to charge User’s card at Retailer’s convenience but within thirty (30) days of credit card authorization. Retailer may require additional credit verification or information before accepting any order.
User is responsible for paying any governmental taxes imposed on your purchases, including, but not limited to, sales, use or value-added taxes.
User’s receipt of an order confirmation does not signify Retailer’s acceptance of User’s order, nor does it constitute confirmation of Retailer’s offer to sell. Retailer reserves the right at any time after receipt of User’s order to accept or decline User’s order for any reason. Retailer further reserves the right any time after receipt of User’s order, without prior notice to User, to supply less than the quantity User ordered of any Product or Content. If an order consists of multiple physical items, they may be shipped separately depending on availability. Your order will be deemed accepted upon transmittal or shipment of the Product or Content by Retailer.
Products and Content and may be purchased while supplies last. The items offered for sale on the Online Retail Store contain descriptions that are provided directly by the publisher, manufacturer, developer or distributor of such item. Retailer does not represent or warrant that the description of the items offered for sale on the Online Retail Store are accurate or complete. If User purchases an item from Retailer that is not as described on the Online Retail Store, User’s sole and exclusive remedy is to return such item for a refund pursuant to the returns policy stated herein.
With the exception of Digital Content, the risk of loss and title for all physical Product purchased by the User via the Online Retail Store pass to the User upon delivery of the item to the carrier.
The price for an item on the Online Retail Store may differ from the price shown in a User's shopping cart — it is possible that such price may increase or decrease between the time the item is placed in a shopping cart and the time that the purchase is actually made. On rare occasions, an item may be priced incorrectly on the Online Retail Store. If the price for the item on the Online Retail Store is incorrect and is actually higher than the price provided at the time of purchase, then, at the sole discretion of Retailer, Retailer may either (i) contact the User for instructions before shipping or downloading the item or charging the User for such item; (ii) cancel the order for such item and notify the User of such cancellation; or (iii) ship or download the item at the incorrect price to the benefit of the User.
Please note that this policy regarding prices applies only to items sold and shipped or downloaded by Retailer. Any purchases of Product and/or Content or from any third-party sellers on the Online Retail Store may be subject to different policies in the event of an incorrectly priced item.
7. AGE OF USERS
Retailer’s products and services are marketed for and directed towards purchase by adults or with the consent of adults. Individuals under the age of 18 ("Minors") are not permitted to use the Online Retail Store or Retailer websites without the supervision of a parent or legal guardian. Furthermore, Retailer does not knowingly collect or solicit personal information from children under the age of 13 or knowingly allow such persons to register for an online account or to post personal information online. Should Retailer learn that someone under the age of 13 has provided any personal information to or on the Online Retail Store or any Retailer website, Retailer will remove that information as soon as possible.
8. RIGHT TO TERMINATE USERS
9. PASSWORDS AND ACCOUNT SECURITY
In order to purchase and download Product and Content, including Digital Content, User must enter User’s ID and password to authenticate User’s account. Every User that has an account on the Online Retail Store is responsible for (i) keeping his or her account password confidential and secured, (ii) avoiding unauthorized access to such User's computer; and (iii) keeping the e-mail address associated with that account current (User acknowledges that it is important to keep the e-mail address associated with his or her account current because although the User may be able to log into his or her Online Retail Store account using an old e-mail address, such User will not receive messages from Retailer about his or her orders and inquiries or other matters).
User accepts full responsibility for all activities that occur within such User's Online Retail Store account or within the Retailer Interactive Services.
10. USER CREATED CONTENT AND USER INTERACTION
Retailer reserves the right, in its sole discretion, to reject, refuse to post or remove any posting or other User Created Content (including private messages) by You, or to deny, restrict, suspend, or terminate access to all or any part of the Interactive Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. Retailer reserves the right, in its sole discretion, to remove Your profile and/or deny, restrict, suspend, or terminate Your access to all or any part of the interactive community services for any reason.
If You become aware of misuse of the Interactive Services, including any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable material of any kind, material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violates any applicable law, please notify Retailer at the following email address: firstname.lastname@example.org .
Notwithstanding the foregoing, Retailer assumes no responsibility for ongoing monitoring of the Online Retail Store or for removal or editing of any User Created Content, even after receiving notice. Retailer assumes no liability for any action or inaction with respect to conduct, communication, or User Created Content within the Interactive Services.
The Retailer online Interactive Services are not designed for use by Minors. No children under the age of 13 are permitted to register or create user profiles; and individuals ages 13 through 18 must participate in the Interactive Services only under the supervision of a parent or legal guardian.
You may not post User Created Content that: involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming"; contains restricted or password only access pages or hidden page or images (those not linked to or from another accessible page); solicits passwords or personal identifying information for commercial or unlawful purposes from other Users; involves commercial activities and/or sales such as contests, sweepstakes, barter, advertising, or pyramid schemes; includes a photograph or video of another person that You have posted without that person's consent; circumvents or modifies, or attempts to circumvent or modify, or encourages or assists any other person in circumventing or modifying any security technology or software that is part of the Online Retail Store; involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network; covers or obscures the banner advertisements on your personal profile page; involves any automated use of the Online Retail Store, such as, but not limited to, using scripts to add friends or send comments or messages; interferes with, disrupts, or creates an undue burden on the Online Retail Store or the networks or services connected to the Interactive Services; impersonates or attempts to impersonate another Interactive Services User, person or entity; uses the account, username, or password of another Interactive Services User at any time or discloses Your password to any third party or permits any third party to access your account; sells or otherwise transfers Your profile; uses any information obtained from the Online Retail Store in order to harass, abuse, or harm another person or entity, or attempting to do the same.
Interactive Services Users may upload to or otherwise submit to Retailer for distribution on the Online Retail Store only (i) User Created Content that is not subject to any copyright or other proprietary rights restrictions; or (ii) User Created Content in which the owner or licensor has given express authorization for Retailer to distribute over the Internet. You may not upload, embed, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. Any copyrighted or other proprietary User Created Content distributed with the consent of a copyright owner should contain a phrase such as "Copyright, owned by [name of owner]; used by permission." Retailer is entitled to presume that all User Created Content conforms to the foregoing requirements. The unauthorized submission of copyrighted or other proprietary User Created Content is illegal and could subject the User to personal liability for damages in a civil suit as well as criminal prosecution. Interactive Services Users assume all liability for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from an unauthorized submission or submission of User Created Content. Retailer assumes no liability for any damage resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from any User Created Content.
By submitting User Created Content within the Interactive Services, Interactive Services Users automatically grant, or represent and warrant that the owner or authorized licensor of such User Created Content has expressly granted Retailer the royalty-free, perpetual, irrevocable, right and license to use, reproduce, publish, translate, sublicense, copy, modify, delete, enhance and distribute the User Created Content in whole or in part worldwide and/or to incorporate such User Created Content in other works in any form, media, or technology now known or hereafter developed for the full term of any copyright that may exist in such User Created Content.
User consents to receive electronic communications from Retailer, whether addressed to the e-mail address associated with such User's Online Retail Store account or posted on the Online Retail
Store. User acknowledges and agrees that any communication via e-mail or by postings on the Online Retail Store satisfies any legal requirement that such communications be made in writing.
13. DISCLAIMERS AND LIMITATION OF LIABILITY
Retailer is not responsible for and makes no warranties, express or implied, as to any Digital Content, other Content or User Created Content appearing on or accessed through the Online Retail Store.
To the fullest extent permissible by applicable law, Retailer and each Retailer Provider disclaims all implied warranties, including but not limited to, implied warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing, neither Retailer nor any Retailer Provider makes any representation or warranty of any kind, express or implied:
(i) as to the operation of the Online Retail Store, or the Digital Content, other Content or User Created Content;
(ii) that the Online Retail Store or the eReader or Software will be uninterrupted or error-free;
(iii) as to the accuracy, completeness, reliability, or currentness of, or the results to be obtained from, any information, Digital Content, other Content or User Created Content, service, or merchandise provided through the Online Retail Store;
(iv) as to the non-infringement of any third party rights of the Online Retail Store, Digital Content, other Content, User Created Content, or other Software; or
(v) that Digital Content, other Content, User Created Content, or Software are free of viruses, scripts, Trojan horses, worms or other harmful components.
Any material or data obtained through the use of the Online Retail Store is at Your own discretion and risk and You understand that You will be solely responsible for any resulting damage. Under no circumstances shall Retailer be responsible for any loss or damage, including personal injury or death, resulting from use of, or inability to use, the Online Retail Store or Digital Content, other Content or User Created Content. Retailer takes no responsibility for third party advertisements or third party applications that are posted on or through the Online Retail Store, nor does it take any responsibility for the goods or services provided by its advertisers. Retailer is not responsible for the conduct, whether online or offline, of any User.
Retailer assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication. Retailer is not responsible for any problems or technical malfunction of the e-Reader, or any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any e-mail or players due to technical problems or traffic congestion on the Internet, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Online Retail Store.
Under no circumstances shall Retailer be responsible for any loss or damage, including personal injury or death, resulting from use of the Online Retail Store, from any Product or Content, including Digital Content and User Created Content, posted on or through the Online Retail Store, from the e-Reader or from the conduct of any Users of the Online Retail Store.
The Online Retail Store, the Product, and all Content are provided by Retailer and Retailer Providers on an "as is" and "as available" basis. To the fullest extent permissible by applicable law, each Retailer Provider disclaims all implied warranties, including but not limited to, implied warranties of merchantability and fitness for a particular purpose.
With respect to Product or Content related to the medical field, User acknowledges that medicine is an ever-changing science. As new research and clinical experience broaden knowledge in the field, changes in treatment and drug therapy are required. In view of the possibility of human error or changes in medical sciences, neither Retailer nor Retailer Providers warrant that the information contained in the Product or the Content is in every respect accurate or complete, and they are not responsible for any errors or omissions or the results obtained from the use of such information. Users are encouraged to confirm the information obtained in the Product and the Content with other sources. For example, and in particular, Users are advised to check the product information sheet provided in the package of each drug they plan to administer to be certain that the information contained in the Product and/or Content is accurate and that changes have not been made in the recommended dose or in the contraindications for administration. This recommendation is particularly important in connection with new or infrequently used drugs. Neither Retailer nor Retailer Providers shall be liable to any User or to anyone else for any inaccuracy, delay, interruption of service, error or omission, regardless of cause, or from any damages resulting therefrom.
Under no circumstances shall Retailer or any Retailer Provider be liable for any damages that result from the use of or inability to use the Online Retail Store, including but not limited to reliance by a User on any information obtained from the Online Retail Store or that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction, or unauthorized access to Retailer’s records, programs, or services. User hereby acknowledges that this paragraph shall apply to all Product and Content, including Digital Content and User Created Content, the e-Reader, merchandise, and services available through the Online Retail Store.
Neither Retailer nor any Retailer Provider will be liable for any indirect, incidental, special or consequential damages arising from the use of the Online Retail Store, the e-Reader, or the purchase or download of any Product or Content, including Digital Content, or product therefrom, even if Retailer or any Retailer Provider have been advised of the possibility of such damages.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to a User, some or all of the above disclaimers, exclusions, or limitations may not apply to such User, and such User may have additional rights.
14. U.S. GOVERNMENT RIGHTS
User agrees that by installing, copying, or otherwise using the Software and the Online Retail Store that: (i) User does not reside in a country subject to embargo or export controls by the U.S. Government; (ii) User is not on the List of Denied Persons as published by the U.S. government; and (iii) User will not use the Software or the Online Retail Store for any illegal purpose. Because the Software, the Online Retail Store, and related technical data are subject to U.S. export controls, User agrees that User shall not upload, export or "re-export" (transfer) the Software or any Content, including Digital Content and User Created Content, unless User has complied with all applicable U.S. export controls.
The Content, Products, and Software are “commercial items,” "commercial computer software" and "commercial computer software documentation" as defined in the U.S. Federal Acquisition Regulation and the U.S. Defense Federal Acquisition Regulation Supplement, with the same rights and restrictions customarily provided to end users.
17. APPLICABLE LAW; JURISDICTION
Each of Retailer and User agrees to submit to the nonexclusive personal jurisdiction of the courts located within New York County, New York, United States and waives any objection to the laying of venue of any litigation in said courts.
18. DISPUTE RESOLUTION
Alternatively, at Retailer’s sole option, a Claim (including Claims for injunctive or other equitable relief) may be adjudicated by a court of competent jurisdiction located in New York County, New York.
Any Claim shall be arbitrated or litigated, as the case may be, on an individual basis and shall not be consolidated with any Claim of any other party whether through class action proceedings, class arbitration proceedings or otherwise.
You are solely responsible for Your interactions with other Users. Retailer reserves the right, but has no obligation, to become involved in any way with disputes between You and other Users.
19. DIGITAL MILLENNIUM COPYRIGHT ACT.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials hosted by Retailer, including Digital Content and User Created Content, infringe your copyright, you (or your agent) may send Retailer a notice requesting that the material be removed or access to it blocked. The notice must include the following information (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on this website are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Retailer to locate the material on the Online Retail Store; (d) the name, address, telephone number and e-mail address (if available) of the complaining party; (e) a statement 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 (f) a statement 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. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Retailer a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. Notices and counter-notices with respect to this website should be sent to: Bookish 4th Floor New York, NY 10011. Retailer suggests that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
21. ADDITIONAL TERMS AND CONDITIONS
http://www.bookish.com/support (also accessible via a link on the bottom of the Online Retail Store homepage)
23. ENTIRE AGREEMENT