INKUBOOK USER AGREEMENT
(March 17, 2008)
Millennium Publishing, Inc. (“Millennium Publishing,” “we” or “us,” through the INKUBOOK.COM website (the “Site”), provides online collaboration and personal printing services that allow our users to create, design and print professional quality photo books. You must be a registered member of the Site in order to use our services. This User Agreement (the “Agreement”) sets forth the legally binding terms for all members of the Site. By signing up as a member of the Site, you agree to be bound by this Agreement. If you do not agree with the terms and conditions set forth in this Agreement, do not click “I Agree” below.
Children under the age of thirteen (13) are not allowed to register as members of the Site.
From time to time, you may be required to agree to additional terms and conditions governing certain services or certain portions of the Site. To the extent there is a conflict between the provisions of this Agreement and the terms and conditions posted for a specific service or portion of the Site, the latter will govern, but only with respect to your use of that particular service or portion of the Site.
1. Your Access to the Site. By registering as a member of the Site, you represent and warrant to us that: (a) the personal information that you submit is truthful and accurate; (b) you are thirteen (13) years of age or older; and (c) your use of the Site does not violate any applicable law or regulation.
2. Term. This Agreement becomes effective as of the moment you click “I Agree” and shall remain in full force and effect while you are a member. You may withdraw and terminate your membership at any time, for any reason, by sending a written request to admin@inkubook.com. Millennium Publishing may terminate your membership at any time, for any reason, by sending notice to you at the then-current email address in your profile. You acknowledge and agree that termination of your membership will involve the immediate deletion of your Member Material (defined herein) from the Site, and that Millennium Publishing will have no liability whatsoever relating to any termination of your membership and/or deletion of your Member Material.
3. Password. When you sign up to become a member, your email address will become your username and you will be assigned a password. Each member is solely responsible for maintaining the confidentiality of his or her username/password combination. You agree to notify us immediately if you suspect any unauthorized use of your username/password combination.
4. Millennium Publishing’s Proprietary Rights in and to the Site. The Site contains proprietary information and content that is owned by Millennium Publishing and/or its third-party licensors (“Site Content”). Under no circumstances will you obtain any rights in the Site Content other than those specifically granted in this Section 4. Examples of Site Content are the Site’s layout and design, the graphics and text used on the Site and the software used to operate the Site. The Site Content is protected by copyright, trademark, patent, trade secret and other laws. Millennium Publishing hereby grants you a limited, non-exclusive, revocable, non-sublicensable license to use, reproduce and display the Site Content (excluding the reproduction of any software code) solely for the purpose of your personal use of the Site.
5. Your Member Material. As a member, you may post proprietary photographs, text, graphic images and other works of authorship on the Site (“Member Material”). You are solely responsible for all Member Material that is posted by or through your account on the Site, and the consequences of posting such Member Material. You may not provide or post any photograph of another person without that person’s permission. You hereby represent and warrant that: (i) you own or otherwise have the right to use and post all of the Member Material that you provide to and post on the Site, in whatever form and for whatever purpose, and (ii) your Member Material does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity. You hereby agree to pay any and all royalties, fees, damages or any other penalties payable to any third party as a result of the Member Material that you post on the Site.
You may post Member Material on the Site for the purposes of (i) creating and printing your own book(s), (ii) offering a contribution to another member’s book, and/or (iii) participating in a member forum or other general communication service offered on the Site. You will retain all rights of ownership in the Member Material; however, you hereby grant to Millennium Publishing a non-exclusive, worldwide, fully-paid and royalty-free license to use, publicly display, reproduce and distribute your Member Material for the purposes of creating and printing the books and products that you order and hosting a forum, or for any other purpose that you authorize (including the use of your Member Material by other members as a contribution to their books or products).
You agree that you will not provide or post any Member Material that contains anything that (i) is offensive (e.g., contains nudity, violence, sexually explicit, or offensive subject matter) or promotes racism, bigotry, hatred or physical harm of any manner against any person, group of persons or animals; (ii) bullies, harasses or advocates stalking, bullying, or harassment, of another person; (iii) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (iv) promotes, reproduces, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by patent, copyright, trademark or trade secret law; (v) harms minors in any way, including but not limited to material that results in the exploitation of persons under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18; (vi) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (vii) solicits passwords or personally identifiable information from other members for commercial, unauthorized or unlawful purposes; (viii) knowingly contains viruses, Trojan horses, worms, time bombs, corrupted files, or similar disruptive software; (ix) violates any applicable law; or (x) otherwise violates this Agreement or creates any liability of Millennium Publishing. We hereby reserve the right to remove any objectionable Member Material at our sole discretion, without notice to the posting member.
6. Access to and Use of Other Members’ Member Material. This Site allows you to contribute your Member Material to the projects of other members and to receive contributions of Member Material from other members for your own projects. However, the member who seeks contributions of other members’ Member Material to his or her project has complete control over whether and how to use contributed material. It is solely up to the members to agree on the use of each other’s Member Material and the use and distribution of any book or project that may contain content not owned by the publishing member.
7. Fees; Purchase of Products. You acknowledge that Millennium Publishing reserves the right to charge for certain services offered on the Site and to change its fees from time to time, at its sole discretion. When you use any fee-based services, you will be responsible for the payment of any applicable fees as set forth on the Site.
You must be at least eighteen (18) years of age to place an order for books or other products through the Site. If you are a member who is between thirteen (13) and eighteen (18) years of age, you must have a person who is over eighteen (18) place an order on your behalf. You agree to pay all fees and charges incurred in connection with your orders and purchases (including any taxes imposed on your orders and purchases, including, but not limited to, sales, use or value-added taxes) at the rates in effect when the order was placed.
When you place an order, you will be required to give us a valid credit card number and associated payment information, including but not limited to: (i) your name as it appears on the card, (ii) the credit card type, (iii) the date of expiration of your credit card, (iv) billing address, and (v) any verification numbers or codes needed to charge your card. You hereby acknowledge and agree that, once you place an order and provide credit card information, no additional notice or consent is required before Millennium Publishing invoices the credit card for all amounts due and payable.
8. Non-Commercial Use of the Site by Members. The services on the Site are for the personal use of members only. Any unauthorized use of the Site or services, including but not limited to collecting email addresses of other members is strictly prohibited.
9. No Liability for Member Interaction. Each member is solely responsible for his or her interactions with other members while using all features of the Site. Millennium Publishing reserves the right, but we have no obligation, to monitor disputes between you and other members. If you would like to file a formal complaint against another member, you may send us an email at admin@inkubook.com and provide detailed information about the issue for our consideration. Millennium Publishing has sole and final discretion to act on any formal complaint, but we shall have no liability for any action or inaction pursuant to Section 15 of this Agreement.
10. Management of Site by Millennium Publishing. Millennium Publishing has the right, but is not obligated, to monitor and review the Member Material posted on the Site. Millennium Publishing has the right to remove any public postings from the Site, if those postings (in Millennium Publishing’s sole discretion) violate this Agreement or are otherwise objectionable. Millennium Publishing assumes no responsibility or liability for any action or inaction with respect to Member Material or other public postings. Millennium Publishing does not control or endorse any Member Material posted to the Site, and hereby explicitly disclaims any liability with respect to all Member Material.
You acknowledge and agree that your Member Material will not remain posted and accessible for an indefinite period of time. Millennium Publishing reserves the right to delete any Member Material, without notice to you, that has not been accessed for a period of twelve (12) consecutive months.
11. Copyright Policy. Members may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to any other person without obtaining the prior written consent of the owner of such proprietary rights. It is Millennium Publishing’s policy to terminate access to any member who infringes the copyright rights of others, either upon receipt of proper notification to us by the copyright owner or the copyright owner's legal agent or as determined after review by Millennium Publishing under its sole discretion.
a. Notification of Alleged Copyright Infringement. If you believe that your proprietary copyrighted work has been copied and/or posted on this site in a way that constitutes copyright or other legal infringement, please contact our Copyright Agent at admin@inkubook.com (or by regular mail at the address in Section 20e below), with the following information (a “Notification of Alleged Copyright Infringement”):
(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(ii) a description of the copyrighted work that you claim has been infringed;
(iii) a description of where the material that you claim is infringing is located on this site;
(iv) your address, telephone number, and email address;
(v) 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
(vi) 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.
Please be aware that you may be liable for damages, including court costs and attorney’s fees, if you file a Notification of Alleged Copyright Infringement that materially misrepresents that content on the Site infringes your copyright materials.
Upon receiving a proper Notification of Alleged Copyright Infringement, we may remove or disable access to the allegedly infringing material and notify the alleged infringer of your claim. We also will advise the alleged infringer of the Counter-Notification procedure described below, by which the alleged infringer may respond to your claim and request that we restore the material at issue.
b. Counter-Notification Procedure. if any member believes that his or her own copyrighted material has been removed from or disabled on the Site as a result of mistake or misidentification, you may submit a written Counter-Notification to our Copyright Agent at admin@inkubook.com (or by regular mail at the address in Section 20e below). To be an effective Counter-Notification, your submission must include the following:
(i) an electronic or physical signature of the original poster;
(ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(iii) a statement, under penalty of perjury, that the poster (member) has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) the poster’s (member’s) name, address and telephone number, and a statement that the poster (member) consents to the jurisdiction of the Federal District Court in which your address is located, or if your address is outside the United States, for any judicial district in which the service provider may be found, and a statement that you will accept service of process from the party that filed the Notification of Alleged Copyright Infringement or that party's agent.
If Millennium Publishing receives a valid, written Counter-Notification meeting the requirements described above, we will restore the removed or disabled material after ten (10) business days but no later than fourteen (14) business days from the date we receive the Counter-Notification, unless our Copyright Agent first receives notice from the party filing the original Notification of Alleged Copyright Infringement informing us that such party has filed a court action to restrain you from engaging in infringing activity related to the material in question.
Please be aware that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees.
12. No Control over Third-Party Links. Any links found on this Site to third-party websites are posted by members or other third parties and such third-party websites are not under our control. Millennium Publishing is not responsible for the content of any such third-party website and such sites are not endorsed or sponsored by us, unless otherwise explicitly noted.
13. Limited Warranty. Millennium Publishing warrants that, subject to minor differences across products and printing partners, the books and products that you order through the Site will be free of any defects in materials and workmanship. Millennium Publishing will, at its own expense and as its sole obligation and your exclusive remedy, replace any defective books or products which you report to us within twenty-one (21) calendar days after we receive notice and accompanying evidence of the defect. The foregoing limited warranty does not include the obligation to correct (a) typographical errors, mistakes in grammar, unfinished text or other text errors; (b) low resolution images that may appear blurry in print; (c) design issues, including book or product format, organization, style, color and page layout; or (d) any other creative choices that you make related to your book or product.
14. Disclaimer of All Other Warranties. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 13, THE SITE AND RELATED SERVICES ARE PROVIDED AS-IS AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THIS MEANS, WITHOUT LIMITATION, THAT MILLENNIUM PUBLISHING DOES NOT WARRANT THAT THE SITE IS FIT FOR ANY PARTICULAR PURPOSE, THAT THE SITE CONTENT IS NON-INFRINGING; THAT THE SERVICES AVAILABLE VIA THE SITE WILL BE UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE INFORMATION AND CONTENT OF THE SITE ARE ACCURATE, ERROR-FREE OR RELIABLE.
15. Millennium Publishing’s Limitation of Liability. MILLENNIUM PUBLISHING IS NOT RESPONSIBLE FOR ANY MEMBER MATERIALS, PROJECTS, CONTRIBUTIONS, POSTINGS OR CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER. UNDER NO CIRCUMSTANCES SHALL MILLENNIUM PUBLISHING BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SITE, ATTENDANCE AT AN EVENT ADVERTISED ON THE SITE OR FROM ANY POSTINGS OR SUBMISSIONS ON OR THROUGH THE SITE. MILLENNIUM PUBLISHING IS NOT LIABLE FOR ANY DEFAMATORY, THREATENING, INFRINGING, OFFENSIVE OR ILLEGAL MATERIAL SUBMITTED OR POSTED BY YOU OR OTHER MEMBERS.
YOU ACKNOWLEDGE THAT MILLENNIUM PUBLISHING AND ITS AFFILIATES, TOGETHER WITH THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, ARE NOT LIABLE FOR ANY DELAYS, INACCURACIES, FAILURES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETIONS, DEFECTS, VIRUSES, COMMUNICATION LINE FAILURES OR FOR THE THEFT, DESTRUCTION, DAMAGE OR UNAUTHORIZED ACCESS TO YOUR COMPUTER SYSTEM OR NETWORK. MILLENNIUM PUBLISHING AND ITS AFFILIATES, TOGETHER WITH THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, ARE NOT LIABLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF ANY EMAIL DUE TO TECHNICAL PROBLEMS OR HIGH TRAFFIC ON THE INTERNET OR ANY COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO YOUR OR TO ANY PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATION ON OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SITE.
YOU ACKNOWLEDGE THAT MILLENNIUM PUBLISHING AND ITS AFFILIATES, TOGETHER WITH THEIR RESPECTIVE EMPLOYEES, AGENTS, DIRECTORS, OFFICERS AND SHAREHOLDERS, ARE NOT LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, IN CONNECTION WITH OR ARISING FROM YOUR USE OR FROM YOUR INABILITY TO USE THE SITE. THIS LIMITATION APPLIES TO ALL POTENTIAL CLAIMS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.
16. Indemnification Obligation of Member. As a member, you hereby agree to indemnify and hold Millennium Publishing, its affiliates, and its officers, agents, partners and employees, harmless from any loss, liability, damages, claim or demand (including court costs and reasonable attorney’s fees) made by any third party due to or arising out of (i) your use of the Site in violation of this Agreement; (ii) your breach of this Agreement; or (iii) any breach of your representations and warranties set forth herein, and/or if any of your Member Material or your use of another member’s Member Material causes Millennium Publishing to be liable to another.
17. Changes to This Agreement. Millennium Publishing may modify this Agreement periodically with all modifications taking immediate effect. You agree to be bound by any changes to the Agreement when you use the Site after any such modification is posted. It is therefore important that you review the posted Inkubook User Agreement regularly to ensure you are updated as to any changes. If you do not agree with any of the changes, you should stop using the services on the Site and terminate your membership.
18. Privacy Policy. Millennium Publishing takes your privacy rights very seriously. Please read the terms of the Privacy Policy at http://www.inkubook.com/privacypolicy.aspx, which terms are hereby incorporated into this Agreement by reference.
19. Governing Law and Venue. This Agreement and our relationship are governed by the laws of the State of Indiana, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Marion County, Indiana, U.S.A. in all disputes arising out of or relating to the use of the Site. Membership and use of the Site is unauthorized in any jurisdiction that does not give effect to this Agreement, including this paragraph.
20. Miscellaneous. The following general legal provisions shall govern the interpretation of this Agreement:
a. Independent Contractors. No joint venture, employment, or other legal relationship exists between you and Millennium Publishing as a result of this Agreement or your use of the Site.
b. Severability. If any of the terms and conditions in this Agreement is held invalid or unenforceable, then it will be deemed superseded by a valid, enforceable provision that most closely matches the original intent, and the remainder of the Agreement shall continue in effect.
c. Entire Agreement. This Agreement and the Privacy Policy referenced herein form the entire agreement between you and Millennium Publishing with respect to the Site and your membership. This Agreement supersedes all prior or contemporaneous communications between you and Millennium Publishing concerning any matters set forth herein.
d. Validity of Agreement. A printed version of this Agreement and any notices given in electronic form shall be admissible in judicial or administrative proceedings based on or relating to this Agreement to the same extent and subject to the same conditions as other business documents originally in printed form.
e. Notices. Any communications, notices, requests or demands relating to this Agreement shall be in writing and shall be deemed given when received upon delivery by hand, transmission by facsimile, email or mailing by registered or certified mail, addressed as follows:
Millennium Publishing
Attn: Product Marketing Manager
9045 River Road
Suite400
Indianapolis, IN 46240
Fax: 812-349-0889
Email: admin@inkubook.com
f. Assignment. This Agreement may not be transferred, delegated or assigned by either party without the prior written consent of the other party, except that Millennium Publishing may assign and transfer this Agreement (including your membership and personal data) in connection with the sale of our business or a merger with a third party. This Agreement shall be binding upon, and shall inure to the benefit of, the successors and assignees of you and Millennium Publishing.