THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. This Agreement was last updated on January 5, 2017. We reserve the right to change, modify, add or remove provisions of this Agreement. If we make any substantial changes to these Terms and Conditions, we will notify you by sending you an e-mail to the last e-mail address you provided to us and/or by posting notice of the changes on our website. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our website. These changes will be effective immediately for new users of our Service. By using Our Services after the effective date of the changes, You agree to accept those changes, whether or not You have reviewed them. If You do not agree to this Agreement, You should not use Our Services and You should arrange to cancel Your registered user account or subscription with Us, as applicable.
If You register on Our website or Order Form for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page or Order Form. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY CONTENT YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH CONTENT, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER CONTENT ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR CONTENT BEFORE THE END OF THE TRIAL PERIOD OR YOUR CONTENT WILL BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 10 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the user documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
2.1. Unless We indicate otherwise, this Agreement applies to Your use of “Our Services” which are owned or operated by XanEdu Publishing Inc. d/b/a SharedBook, Inc. (“SharedBook,” “We,” “Us,” or “Our”) and Our affiliates (collectively, “SharedBook”), including, without limitation, the Web site currently located at www.sharedbook.com and any other Web sites that We may own or operate currently or in the future (collectively, Our “Web site”), and any Mobile Applications and all of the services that We may offer currently or in the future (the “Services”).
2.2. For purposes of this Agreement, “affiliates” (whether or not capitalized), shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with You or SharedBook (as applicable).
2.3. “Order Form” means the online ordering process on Our Web sites or any ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
2.4. “Content” means information, software, electronic documents, data, video files, image files or other materials that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights of their respective owners.
2.5 “Your Content” means electronic documents, data, video files, image files or information submitted by or for You to Our Services or collected and processed by or for You using the Services.
2.6 “Published Pack” means a unique combination of Your Content made available for Distribution through the Services.
2.7 “Distribution” means any Published Pack, book or document made available for access by a user of the Services through an email notification, link or access code.
2.8 “Active User” means any user who receives a Distribution (e.g. Published Pack, book or document) during the subscription period.
3.1. We shall make the Services available to You and those individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request) (“Users”) pursuant to this Agreement and the relevant Order Forms during a subscription term. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
3.2. By using the Web site and/or Our Services, You agree to be legally bound and to abide by this Agreement. You understand that only You and Your Users may use the User identifications and passwords issued with respect to Your account, and that Your subscription to Our Services is only valid for Your personal or business use which includes, but is not limited to, use by Your clients who are Users. You agree to be financially responsible for all usage or activity of Services subscribed to by You and the Users.
3.3. From time to time, We may supplement this Agreement with additional terms and conditions pertaining to specific content, activities or events (“Additional Terms”). Such Additional Terms may be placed on the Web site to be viewed in connection with the specific content, activities, features or events and shall be identified as such. You understand and agree that such Additional Terms are hereby incorporated by reference into this Agreement.
3.4. For purposes of Your use of Our Services including identification and billing, You agree to provide Us with true, accurate and complete information as required by the subscription or sign up process to Our Services (“Subscription Data”), including Your legal name, address, telephone number, email address and applicable billing information, and to allow Us to share Your Subscription Data with third parties for the purpose of verifying the information You provide and charging Your account. You agree to maintain and promptly update the Subscription Data and any other information You provide to Us to keep it accurate. Without limiting any other provision of this Agreement, if You provide any information that is untrue, inaccurate, or incomplete, or We have reasonable grounds to suspect that such is the case, We reserve the right to suspend or terminate Your user account or subscription and refuse any and all current or future use by You of Our Web site (or any portion thereof) or any of Our Services. You are obligated to check the “Account Profile” feature of Our Web site to determine whether Your Subscription Data is current and accurate, and, if not, to correct or update Your Subscription Data including Your billing information. You agree not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the Web site.
3.5. You are entirely responsible for maintaining the confidentiality of Your password and user account information. You must notify Us immediately in the event of any known or suspected unauthorized use of Your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Your or anyone else’s password. In the event of a breach of security by You, You will remain liable for any unauthorized use of Your subscription until You update Your Subscription Data.
3.6. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to either the number of Distributions or the number of Active Users permitted, and the Service may not be used for more than the number of Active Users or the number of Distributions so indicated, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.1 (Charges and Fees for Service).
3.7. Removal of Content. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, We shall be entitled to and may disable the applicable Content or Service until the potential violation is resolved.
4.1. This Agreement commences on the date You accept it as indicated on the Order Form and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
4.2. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal before the end of the relevant subscription term.
4.3. Upon request by You made within 30 days after the effective date of termination of a Services subscription, We will make available to You for download a file of Your content in PDF format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Content to You.
4.4. If You do not comply with this Agreement at any time, We reserve the right to cancel or terminate Your password, user account, and/or access to the Web site (or any part thereof) and/or Our Services. In Our sole discretion and without prior notice or liability, We may discontinue, modify or alter any aspect of the Web site or Our Services, including, but not limited to, (i) restricting the time the Web site and/or a Service is available, (ii) restricting the amount of use permitted, and (iii) suspending, restricting or terminating any user’s right to use the Web site and/or any of Our Services. You agree that any termination or cancellation of Your access to, or use of, the Web site and/or Our Services may be effected without prior notice. If You do not abide by the terms of this Agreement, except as We may otherwise provide from time to time, You agree that We may immediately deactivate or delete Your account and those of Your Users and all related information and/or files in those accounts and/or bar any further access to such information and/or files, Our Web site (or part thereof) and/or Our Services.
4.5. You agree that We shall not be liable to You, any User or any third-party for any termination or cancellation of access to, or use of, Our Web site and/or Our Services by Your or Your Users, except for a refund of any fees or charges prepaid by You with respect to Our Services in accordance with paragraph 5 of this Agreement. You acknowledge that Your only right with respect to any dissatisfaction with any modification or discontinuation of service made by Us pursuant to this provision or this Agreement, or any policies or practices by Us in providing the Web site or Our Services, including without limitation any change in content or any change in the amount or type of fees or charges associated with the Services, is to cancel or terminate Your subscription or registered User accounts, as applicable.
4.6. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.7. If this Agreement is terminated by You in accordance with Section 4.6 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 4.6 You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
5.1. If you obtain access to the Services through an email link, key or access code provided to you by a third party, your access allows you to register to use the Services for the period specified by that third party, after which time you will need to obtain an additional key to continue to access the Services.
5.2. If you are purchasing access to the Services directly from SharedBook, you authorize SharedBook to charge your credit card or accept payment from the designated payment processing service, such as PayPal, in the amount indicated on the applicable Order Form. Fees shall be governed by the specific offer to which you are responding and time period for which you are requesting access to the Services. Except as otherwise specified herein or in an Order Form, (i) fees are payable at time of purchase based on services purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable. Such charges shall be made in advance, immediately, monthly or in accordance with any different billing frequency stated in the applicable Order Form. SharedBook may instead, at its option, decide to invoice You as set forth in a relevant Order Form. Unless otherwise agreed upon, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.2. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.1.
5.3. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue before suspending services to You.
5.4. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income (i.e. income taxes), property and employees.
5.5. In addition to the fees and charges set forth above, You are responsible for all charges and fees associated with connecting to Our Web site and Our Services, including without limitation all telephone access lines (including long-distance charges, when applicable), internet service provider fees, telephone and computer equipment, sales taxes and any other fees and charges necessary to access Our Services.
5.7. You shall pay all fees associated with Print Orders placed on our Website hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable. You authorize SharedBook to charge your credit card or accept payment from the designated payment processing service in the amount of fees corresponding to the charges indicated on the Print Orders placed on our Website. SharedBook may instead, at its option, decide to invoice You. Such charges shall be billed monthly or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
7.1. You acknowledge that the Web site and Our Services contains information, software, photos, video, text, graphics, sounds, questions, suggestions, messages, comments, feedback, ideas, notes, drawings, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and We own a copyright in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on the Web site are trademarks of their respective owners. SharedBook is the trade name and trademark of XanEdu Publishing Inc. d/b/a SharedBook, Inc. Our commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on the Web site. You may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to Your computer, You do not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other Web site or networked computer environment is strictly prohibited unless You receive Our prior written consent.
7.2. You acknowledge that all Content and all information, software, photos, video, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials posted, emailed, or otherwise transmitted to or on the Web site, whether posted at Our request or voluntarily, and whether publicly posted or privately transmitted, are the sole responsibility of the person who made such postings. This means that You are entirely responsible for all Customer Published Materials that You post, email, publish or otherwise transmit to the Web site. We do not control the Submissions or Content posted, emailed or otherwise transmitted on Our Web site by others and, as such, We do not guarantee the accuracy, integrity or quality of such Content or Submissions. You understand that by using the Web site, You may be exposed to Content or Submissions that are offensive or objectionable. Under no circumstances will We be liable in any way for any Content or Submissions, including, but not limited to, for any errors or omissions in any Content or Submissions (including Your Customer Published Materials), or for any loss or damage of any kind incurred as a result of the use of any Content or Submissions posted, emailed or otherwise transmitted to or through the Web site.
7.3. You acknowledge that We are acting as a passive conduit for such distribution and We are not undertaking any obligation or liability relating to any Content or Submissions. Although We reserve the right to remove, without notice, any Community Area posting for any reason, We have no obligation to review Content prior to the Content’s posting or to delete Customer Published Materials that You may find objectionable or offensive. We are not responsible for maintaining a copy of any material We remove from Our Web site, and We are not liable for any loss You incur in the event that Content You post, publish or transmit to Our Web site is removed.
8.1. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
8.2. You may use the Service only for Your internal business purposes; but including any permitted use by your business customers, and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights or other third party rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the content or data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks; or unless otherwise agreed upon.
8.3. You represent and warrant that: (a) You have not falsely identified Yourself or any User, nor have or will Your or Your Users provide any false information to gain access to the Service; (b) Your billing information as set forth on the Order Form is correct; (c) You and Your Users will use the Web site in accordance and comply at all times with this Agreement, including any modifications to this Agreement in accordance therewith; (d) Your and Your Users shall at all times comply with all applicable laws, rules and regulations with respect to the use of the Web and the Services; and (e) You and Your Users will not use the Web site to infringe, misappropriate or violate the rights of Us or third parties.
8.4. When using any Services provided via the website, You may elect to upload or otherwise submit materials to the site (collectively, “Materials”). SharedBook does not supervise the uploading of any User-provided Materials to this site, although it reserves the right to do so. You agree, represent and warrant that in using the Services, You will not upload, submit or otherwise transmit to SharedBook:
8.4.1. Materials that are unlawful, threatening, abusive, defamatory, obscene or which invade another person’s privacy or further the commission or concealment of a crime;
8.4.2. Materials that are not lawfully Yours to transmit;
8.4.3. Materials that are the subject of, or which infringe upon, any patent, trademark, trade name, trade secret, copyright, right of publicity, moral right or other intellectual property right of another person or entity;
8.4.4. Materials containing software viruses or other harmful computer code; or Materials that in any way interfere with or disrupt the Services or any servers or networks connected to or used with the Services (any of the foregoing, “Unauthorized Materials”). In respect to any materials and/or images (“SharedBook Materials”) provided to you through this site that you did not upload, submit or otherwise transmit to SharedBook, you agree, represent and warrant:
8.4.5. That any use of SharedBook Materials is limited to use by you solely for your personal or business use; including, as applicable, the use of Your customers.
8.4.6. Not to reverse engineer, decompile, or disassemble any of the SharedBook Materials or use them separately from the SharedBook Materials provided by SharedBook;
8.4.7. Not to modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works from, transfer, sale, or otherwise use the SharedBook Materials, except as specifically provided in this Agreement;
8.4.8. Not use the SharedBook Materials in context or juxtaposition with any pornographic, defamatory, or unlawful uses or materials.
8.5. SharedBook takes no ownership in any Materials uploaded to the website, except SharedBook retains its rights in and to the Content that is present on the Web site or that may be created and/or supplied by or for SharedBook.
8.6. You also warrant and confirm that You own the copyright or have all permissions and authority to copy any documents or Materials You submit online for printing or processing, and agree to defend, indemnify and hold SharedBook, and their respective officers, directors, agents and employees, harmless from any suit, demand, or claim arising out of any breach of the representations and warranties set forth in this Agreement and agree to pay any judgment or reasonable settlement offer resulting from any such suit, demand or claim, and to pay any attorney fees incurred by SharedBook in defending against such suit, demand or claim.
9.1. We respect the intellectual property of others, and We ask Our users to do the same. We may, in appropriate circumstances and in Our sole discretion, terminate the rights of any user to use Our Web site (or any part thereof) who infringes the intellectual property rights of others. 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 that Your work has been copied in a way that constitutes copyright infringement or are aware of someone doing so, please contact Us and include the following information: a) a physical or electronic signature of the owner of the copyright or a person authorized to act on behalf of the owner; b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on this Web site 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 Us to locate the material on Our Web site; d) Your name, mailing address, telephone number and email address; e) a statement by You that You have 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 by You that the information in Your notification is accurate, and that You attest under penalty of perjury, that You are the copyright owner or that You are authorized to act on the copyright owner’s behalf.
9.2. If You believe in good faith that a notice of copyright infringement has been wrongly filed against You, the DMCA permits You to send Us a counter-notice. Notices and counter-notices with respect to this Web site should be sent to Our designated agent for notice of claims of copyright infringement: Chief Financial Officer, XanEdu Publishing, Inc. d/b/a SharedBook, 4750 Venture Drive, Suite 400, Ann Arbor, MI 48108 email@example.com.
10.1. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Web site and Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
10.2. You shall not permit any third party to access the Services except as permitted herein or in an Order Form, or copy any features, functions or graphics of the Services.
10.3. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Content, including any intellectual property rights therein.
10.4. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
10.5. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.1. As used herein, “Confidential Information” means all confidential information disclosed or made available by SharedBook to you and your users in the course of your use of the Web site and/or use of the Services, to you and your users that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include the Services; and Confidential Information of SharedBook shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to SharedBook, (ii) was known to you or your users prior to its disclosure by SharedBook without breach of any obligation owed to you or your users, (iii) is received from a third party without breach of any obligation owed SharedBook, or (iv) was independently developed by you or your users.
11.2. You and your users shall use the same degree of care that you use to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of SharedBook for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by SharedBook in writing, to limit access to Confidential Information of SharedBook to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with you or your users containing protections no less stringent than those herein. You and your users shall not disclose the terms of this Agreement or any Order Form to any third party without SharedBook’s prior written consent.
11.3. You or your users may disclose Confidential Information of SharedBook if you are compelled by law to do so, provided you give SharedBook prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, if SharedBook wishes to contest the disclosure.
12.1. THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE SERVICES) ON THIS WEB SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. NEITHER WE, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT THAT THIS WEB SITE OR ANY FUNCTION CONTAINED IN THIS WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEB SITE OR THE SERVERS THAT MAKE THIS WEB SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12.2. ANY PRODUCT, OFFERING, CONTENT AND MATERIAL (INCLUDING, WITHOUT LIMITATION, THE SERVICES) DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS WEB SITE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF CONTENT OR DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH PRODUCT, OFFERING, CONTENT OR MATERIAL (INCLUDING, WITHOUT LIMITATION, THE SERVICES). NEITHER WE, ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE LICENSORS, LICENSEES, SERVICE PROVIDERS OR SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS (INCLUDING, WITHOUT LIMITATION, THE SERVICES) IN THIS WEB SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
12.3. OUR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND PHYSICAL SHIPPING. WE ARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12.4. IN NO EVENT SHALL SHAREDBOOK’S AGGREGATE LIABILITY EXCEED $1. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CONTENT, DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.5. IF YOU ARE DISSATISFIED WITH ANY PORTION OF OUR WEB SITE OR THE SERVICES, OR WITH ANY OF PROVISION OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS THE DISCONTINUATION OF YOUR USE OF THIS WEB SITE AND THE SERVICES. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
12.6. NEITHER SHAREDBOOK OR ANY OF ITS AFFILIATES, SUBSIDIARIES, SUPPLIERS OR SERVICE PROVIDERS IN ANY EVENT WILL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY DIRECT, SPECIAL CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES UNDER ANY THEORY OF LAW (I) (FOR ANY NONDELIVERY, MISDELIVERY, LATE DELIVERY, OR LOST OR DAMAGED SHIPMENTS OR FOR ANY OTHER REASON), INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS, DATA OR USER-PROVIDED MATERIALS, EVEN IF YOU HAVE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.1. We will indemnify You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service provided by Us in accordance with the terms of this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will hold You harmless from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You provided, however, You agree to provide Us with prompt written notice of any Claim Against You. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, and/or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above indemnification obligations do not apply to the extent a Claim Against You arises from Your Content, a Non-SharedBook application or Your breach or violation of any of Your representations, warranties, covenants, or agreements set forth in this Agreement.
13.2. You will indemnify Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Content, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will hold Us harmless from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of a Claim Against Us, provided, however, We agree to provide You with prompt written notice of any Claim Against Us.
13.3. Each of You and Us agree to reasonably cooperate with the other party respect to the defense against any third-party claim that may be subject to the terms of this Section 13, to keep the other party reasonably apprised of the status of any such claim, and to provide reasonable assistance in connection with any such claim. It is acknowledged and agreed that the party providing indemnification shall generally be entitled to defend a claim (with the other party to have a right to participate in such defense), provided that a party actively and diligently defends against such claim with counsel reasonably acceptable to the other party. This Section 13 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 13.
14.1.1 “Error(s)” shall mean any verifiable and reproducible failure of Our Services to materially conform to the specifications. Notwithstanding anything contained in this Agreement to the contrary, the term “Error” shall include, except with regard to clause (2) of this definition, any Severe Error, Moderate Error or Minor Error. The term “Error” shall not, however, include any failure of Our Services to materially conform to the specifications that: (1) results from Your misuse or improper use of Our Services; (2) does not, in the reasonable opinion of SharedBook, materially affect the operation and use of Our Services; or (3) results from any modification of Our Services by You without SharedBook’s prior written consent.
14.1.2 “Minor Error” means any demonstrable Error that: (1) causes a function to not execute as intended without a significant loss of utility of intended functionality; or (2) disables one or more nonessential functions.
14.1.3 “Moderate Error” means any demonstrable Error in Our Services that: (1) causes Our Services to operate improperly; or (2) produces results materially different from its intended function, but which such error does not rise to the level of a Severe Error.
14.1.4 “Severe Error” means any demonstrable Error in Our Services that: (1) causes Our Services to have a significant loss of utility of intended function; (2) causes or is likely to cause data to be lost or destroyed; or (3) prevents Our Services from being properly configured.
14.1.5 “Error Correction” shall mean either a modification of, addition to or deletion from Our Services that, when made to Our Services, shall materially conform the Documentation, or a procedure or routine that, when observed in the regular operation of Our Services, eliminates the effect on Your Error.
14.1.6 “New Release” means a release of Our Services that, in SharedBook’s sole determination, contains new or different functions and/or features relative to Our Services.
14.1.7 “Workaround” means a temporary solution to an Error that SharedBook has implemented, or that SharedBook has granted prior written consent to You to implement, and that allows Our Services to regain functionality and provide major service functions in accordance with its intended function.
14.2 Support Services During the term of this Agreement, SharedBook will provide You with support and maintenance services with regard to Our Services, as set forth in this Section (such services, collectively referred to as “Support Services”).
14.2.1 SharedBook will provide support to You by telephone, email and other means upon such terms and conditions as shall be deemed appropriate by SharedBook in its sole reasonable discretion. The technical support telephone line (866-297-9022) will be staffed by a technical support representative during the hours of 8:00 a.m. to 5:00 p.m. (Eastern Time) Monday through Friday excluding holidays scheduled by SharedBook (“Normal Support Hours”), subject to modification by SharedBook at SharedBook’s sole but reasonable discretion. SharedBook shall provide You with the capability to record a message for SharedBook on voicemail or at SharedBook’s e-mail address in the event that SharedBook’s technical support representative is not available in person. For purposes of Section 2(c) below, Errors reported outside of Normal Support Hours shall be deemed to be received by SharedBook upon the subsequent commencement of Normal Support Hours.
14.2.2 In the event You notify SharedBook of an Error in Our Services, SharedBook shall use commercially reasonable efforts to correct Errors in accordance with the following response times:
14.2.3 SharedBook shall, within one (1) business day following the receipt of notice from You of any Severe Error, contact You to verify such Severe Error and begin a resolution process. Upon such verification, SharedBook will use its commercially reasonable efforts to provide a Workaround for such Severe Error within a commercially reasonable period of time, and shall use commercially reasonable efforts to ensure the effectiveness of such Workaround until such time as an Error Correction shall be implemented in Our Services.
14.2.4 SharedBook shall, within two (2) business days of the receipt of notice from You of any Moderate Error, contact You to verify such Moderate Error. Upon such verification, SharedBook will commence efforts to provide a Workaround for such Moderate Error. SharedBook will use commercially reasonable efforts to provide an Error Correction for such Moderate Error in the next scheduled release of Our Services.
14.2.5 Upon SharedBook’s receipt of notice of a Minor Error and upon SharedBook’s verification of such Minor Error, SharedBook will commence efforts to provide an Error Correction for such Minor Error in the next Release of Our Services.
15.1. ALL JOBS PRODUCED FOR YOU WILL BE RETAINED FOR 30 DAYS AFTER THE ORDER READY BY DATE ON THE RECEIPT AT WHICH TIME YOU WILL BE CHARGED FOR THE COMPLETED JOB IF YOU HAVE NOT PICKED UP THE ORDER. SHAREDBOOK IS NOT RESPONSIBLE FOR RETAINING ANY WORK NOT PICKED UP BY YOU AFTER SUCH 30 DAY PERIOD AND IS ENTITLED TO COLLECT AND RETAIN PAYMENT FOR ALL WORK PERFORMED ON THE CUSTOMER’S BEHALF.
15.2. If a shipment containing Your printed products is refused by the recipient, or is damaged, the shipment will be returned to You if possible. If You refuse to accept the returned shipment or it cannot be returned because of damage, You are responsible for and will reimburse SHAREDBOOK for all costs and fees of any type connected with the return shipment and legal disposal of the shipment; SHAREDBOOK DOES NOT GUARANTEE THE SHIPMENT, AND DELIVERY SERVICES OFFERED ON THIS SITE. IN PARTICULAR, SHAREDBOOK DOES NOT GUARANTEE THE TIMELY DELIVERY OF TIME-SENSITIVE PRINTED PRODUCTS SUCH AS LEGALLY REQUIRED FILINGS. Subject to the limitations listed above, SHAREDBOOK will provide a refund of shipping costs paid or will re-perform printing services and shipping services if any printed products are lost, damaged, not delivered, mis-delivered or delivered late, to the extent caused by FedEx Office or its third-party shipper.
16.1. In the event You are a subscriber to the Professional Edition or Enterprise Edition of the Services, You may utilize the optional “Marketplace” portion of Services for the sale of Published Packs through the e-commerce storefront managed by SharedBook. The Marketplace may be accessed at any time by selecting one or more Published Packs to be made available by You through the Marketplace. You may add, modify, or remove Published Packs from the Marketplace at any time during Your subscription term.
16.2 Pricing; Payments.
16.2.1 The price of Published Packs You make available through the Marketplace are to be established and maintained by You, at your sole discretion; provided that all Published Packs sold through the Marketplace shall not be cancelled, withdrawn, or revised after purchase. No refunds or returns are permitted via the Marketplace.
16.2.2 SharedBook will collect all (100%) of purchase amounts received from purchases of the Published Packs through the Marketplace. Unless otherwise agreed upon between You and SharedBook, SharedBook will remit ninety percent (90%) of all sales collected by SharedBook for sales through Your Marketplace account. Notwithstanding the foregoing, however, SharedBook shall not be required to pay any revenues or fees in connection with (1) any advertising, marketing or promotion of the Published Packs, or (2) any promotional use. Revenues from sales shall be paid to You by SharedBook in accordance with the above percentages on a monthly basis, in arrears, within thirty (30) days from the end of the applicable monthly period; provided, that such payment is greater than $25.00 for any monthly period. For any amounts owed during a monthly period that is less than $25.00, such amount shall carry over to the following monthly period, for as many monthly periods necessary to exceed $25.00.
16.2.3 All Published Packs purchased through the Marketplace (1) shall not be considered a chargeable Distribution, and (2) shall not count toward Your Usage Limits.
16.3 Active Users of the Marketplace shall be required to accept these Terms and Conditions prior to opt-in for access to the Marketplace and purchase of the Published Packs.
16.4 Statements and reports as to sales amounts payable pursuant to the sales of Published Packs via the Marketplace shall be made available online through your Marketplace account. Notwithstanding the foregoing, if SharedBook engages the services of a collection agent, statements and payments relating thereto shall not be due hereunder earlier than ninety (90) days following Company’s receipt of accountings and payments from the collection agent for the applicable period.
16.5 SharedBook does not endorse and is not responsible for any Published Packs, or promotional aspects related thereto. Your dealings with Active Users, and any other terms or conditions, covenants, and representations and warranties associated with Your Active Users are between You and such Active Users. You agree that SharedBook is not responsible for your interactions and dealings through the Marketplace and, in addition to any other limitations of liability, rights and remedies in this Agreement, you hereby irrevocably waive all rights related to and release SharedBook (and Our affiliates and subsidiaries, and Our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes with Active Users.
17.1. In any action against Us arising from the use of the Web site (including, without limitation, the Services), the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney’s fees.
17.2. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
17.3. This Agreement may be modified only by Our posting of changes to this Agreement on the Web site, or by written agreement of both parties. Each time You access the Web site, You will be deemed to have accepted any such changes.
17.4. We may assign Our rights and obligations under this Agreement. This Agreement will inure to the benefit of Our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. This Agreement may not be assigned by You without Our prior written consent. Any purported assignment in violation of this section shall be void.
17.5. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of laws. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of Michigan located in Washtenaw County and the United States District Court for the Eastern District of Michigan for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
17.6. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
17.7. No joint venture, partnership, employment, or agency relationship exists between You and We as a result of this agreement or use of the Service.
17.8. The failure of any party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by We in writing.