Last updated: December 1, 2016
These Terms & Conditions (the “Terms”) govern the relationship between Booxie, LLC (hereinafter, “Booxie,” “us,” or “we”) and you regarding your use of this website (the “Website”), and the Booxie service and related applications and mobile applications designed for facilitating use of or offering of the Booxie service (collectively the “Service”). The applications and mobile applications within Service are “Applications.” The Service is owned and operated or offered by Booxie.
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSION OF THE SERVICE.
1. Basic Rules and Rights We Are Granting.
1.1. License Grant For Service. Subject to your agreement and continuing compliance with these Terms and any other relevant Booxie policies, Booxie grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service through a web browser or through use of Applications. You agree that you will only use the most recent versions of Applications made available by Booxie and acknowledge that certain features or elements of the Service may not operate properly if an older version of Applications is being used by you. As used in these Terms, “Other User” means another licensee or user of the Service; “All Users” means you and all Other Users. “Connections” means Other Users with whom a User has a connection within the Service.
1.2. Minimum Age Requirement For Users Who Are Individuals. If a User is an individual, a User may only use the Service if such User is at least 13 years of age. If you are under the age of 18, you represent that you have received permission from a parent or guardian to enter into these Terms.
1.3. Accounts and Access. You must register for an account through the Service (an “Account”). You may only register for one Account. An “Account Holder” means the person or entity in whose name an Account is registered. A “Third Party Account” means an Account not registered by you.
1.4. Use of the Service: The following restrictions apply to the use of the Service:
(a) You accept full responsibility for any unauthorized use of the Service by parties not authorized to use any of your Accounts. Additionally, you are responsible for any use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account;
(b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
(c) Without first obtaining the written permission of Booxie, you shall not register for an Account or in any way use the Service if Booxie has removed, suspended, or otherwise terminated any Account registered by you, or on behalf of you or if Booxie has notified you that you may not use the Service;
(d) You shall not use your Account to advertise, solicit or transmit any chain letters, junk email or repetitive messages to anyone;
(e) You shall not use the Service to engage in any illegal conduct;
(f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Booxie’ written permission;
(g) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content; and
(h) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
1.5. Account Information and Management.
(b) Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
(i) You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
(ii) In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify Booxie and change the password on your Account;
(iii) You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
(iv) You are responsible for anything that happens through your Account.
(c) Reclaiming Usernames. Booxie reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.
1.6. License and Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law.
(b) Policies. You acknowledge that Booxie has in place policies regarding use of the Service available at www.Booxie.com/userpolicies and that you agree to abide by such policies and that such policies are in addition to any obligations you have under this Agreement.
(c) Activity Prohibitions. You agree that you will not, under any circumstances:
(i) Engage in any act that Booxie deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;
(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of Booxie;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
(vii) Post any content that is abusive, threatening, incites or promotes terrorism, promotes the production or use of weapons that cause substantial harm, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
(viii) Post any content that contains what we reasonably deem to be excessive violence or offensive subject matter or that contains a link to such content;
(ix) Harass, abuse, harm, bully, intimidate or advocate, threaten or incite harassment, bullying, intimidation, abuse or harm of another person or group of persons, including Booxie employees or customer service representatives;
(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(xv) Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by Booxie;
(xvii) Copy, modify or distribute rights or content from any Booxie site, including but not limited to content that contains or is protected by Booxie’ copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
(xviii) Solicit or attempt to solicit personal information from Other Users, other than in connection with considering in good faith a Job or bid on a Job as contemplated in Section 2.1;
(xix) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
(xx) Upload or transmit (or attempt to upload or to transmit), without Booxie’ express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.7. Suspension and Termination of Account and Service:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. BOOXIE SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
(b) IP INFRINGEMENT.
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT SUCH USERS ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(c) Right to Cease Service. Booxie reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. Booxie shall not be required to provide refunds, benefits or other compensation to users in connection with such cessation of the Service or any part thereof.
(d) Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or Other Users submitted. You agree that if your Account is terminated, Booxie will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an Other User.
(e) Cancellation of Account. You may cancel your Account at any time by following the instructions at www.Booxie.com/cancellation or by using the cancellation feature of the Service.
1.8. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by Booxie or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws. You agree not to engage in any reverse engineering, de-compiling or other activities designed to view the source code for the Applications and are prohibited from reverse engineering, de-compiling or otherwise engaging in activities designed to view the source code for the Applications.
2. Your Content and Use of Service.
2.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, text, drawings, writings, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by other Account Holders. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission (a) is accurate and not confidential; (b) not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) along with the exercise of the rights by Booxie granted in Section 2.1 will not result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to Booxie and to grant the rights in Posted Content granted to Booxie under these Terms.
2.2. Licenses to Posted Content: You hereby grant Booxie a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. For clarification, Booxie will not create derivative works of Posted Content in order to sell or distribute such derivative works on a stand-alone basis. Booxie will only exercise the rights granted in this Section 2.2 to offer or to facilitate the offering of Services. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. Booxie will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to Other Users except Booxie retains the right to display or distribute any Posted Content as necessary for Booxie to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.
2.3. Booxie Content. Your use of the Service allows you to organize and combine elements of your Posted Content into a certain organization and format and the resulting content is “Service Created Content.” Service Created Content can be viewed on screen only via use of the Service and you may use the Service to have Service Created Content compiled into a tangible medium such as the printed “Booxie” product (a “Printed Booxie”). You agree that you will not store or distribute a digital copy of Service Created Content.
2.4. Content Screening.
(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any information, including without limitation chat, text or voice communications.
(b) Options Regarding Content. Booxie may reject, refuse to post or delete any content you submit for use or processing by or through the Service for any or no reason, including, but not limited to for the reason, in the sole judgment of Booxie, that such content or the posting of any particular content violates these Terms.
2.5. User Interactions.
(a) Responsibility For Interactions and Adherence to Policies. You are solely responsible for your interactions with other Account Holders and any other parties with whom you interact through the Service. Booxie reserves the right, but has no obligation, to become involved in any way with these disputes. You acknowledge that Booxie has various policies in place regarding use of the Service that are intended to promote a respectful environment for all Users such as but not necessarily limited to policies regarding content submitted, interactions with Other Users, respect for intellectual property rights and billings and refunds (“User Policies”). Current copies of User Policies are available for review at www.Booxie.com/userpolicies and you agree to always abide by User Policies.
(b) Releases For Disputes and Use of Third Party Information. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any of the following: (a) any dispute that arises between your and one or more Other Users; and (b) any use by Booxie of Third Party Information. If you are a California resident, you acknowledge that you are aware of, and understand, the provisions of California Civil Code Section 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
3. Printed Booxies.
3.1. Ordering of Printed Booxies. You may order Printed Booxies containing your Service Created Content, authorize Other Users to Purchase your Printed Booxies, or purchase Printed Booxies containing the Service Created Content of Other Users (if such Other Users authorize the creation of such Printed Booxies).
3.2. Sellers. Users, including you, who wish to offer their Service Created Content for sale to Other Users in the form of a Printed Booxie are known as “Sellers.” No Printed Booxie will be available for purchase without the prior approval of the Seller who created it. Sellers may limit the sale of their Printed Booxies to themselves or their Connections, or may make their Printed Booxies available to All Users. A User who purchases a Printed Booxie is a “Printed Booxie Purchaser.”
3.3. Size of Printed Booxies. All Printed Booxies are currently 4.25 inches square, are printed in a format and style designated by Booxie, and may include up to 24 pages.
3.4. Electronic Payment. All payment for the purchase of Printed Booxies must be made by a Printed Booxie Purchaser directly to Booxie. Such payment will be facilitated using either a PayPal account or a valid credit card.
3.5. Fulfillment of Printed Booxies and Booxie Rights to Refuse Fulfillment. Printed Booxies will be delivered directly by Booxie to the addresses designated by Printed Booxie Purchasers, by FedEx, UPS, USPS, or some other carrier, as selected by Booxie. BOOXIE RESERVES THE RIGHT TO REFUSE TO MANUFACTURE, DELIVER OR SELL ANY PRINTED BOOXIE THAT BOOXIE BELIEVES, IN ITS SOLE DISCRETION, MAY CAUSE BOOXIE TO VIOLATE ANY APPLICABLE LAW OR MAY CAUSE BOOXIE HARM.
4. Payment of Royalties.
4.1. Applicable Terms. Each Seller is eligible to enroll to receive royalty payments from Booxie for the sale by Booxie of such Seller’s Printed Booxies. The payment of royalties to each Seller is subject to the following terms and conditions:
(a) Enrollment. The Seller must first enroll to receive royalties by completing the information in the enrollment form found at [WEB ADDRESS OR LINK IN APP], which may include providing the Seller’s tax identification information. Each Seller hereby grants to Booxie the right to maintain such information for the sole purpose of creating and filing the appropriate tax forms for the royalties earned.
(b) Compliance with Terms. The Seller must be in complete compliance with all of these Terms and the Seller’s Printed Booxies must not violate the intellectual property rights of any third party.
(c) PayPal Account. The Seller must have an accurate and up-to-date PayPal account on file with Booxie in order to receive royalty payments. The Seller has the obligation to notify Booxie if and when the Seller updates its PayPal account information. Booxie will not be responsible for royalty payments that are delayed, remain unpaid, or are paid to the wrong User as a result of a Seller’s failure to provide accurate PayPal account information.
4.2. Royalty Payments. Royalties will be calculated as a percentage of the sale price of each Printed Booxie, excluding sales taxes and shipping, pursuant to Booxie’s then-current royalty rate at the time such Printed Booxie is ordered. Royalties are paid quarterly within thirty (30) days of the end of each calendar quarter.
4.3. Relationship of the Parties. Booxie and each Seller shall at all times remain independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, employer-employee relationship or franchiser-franchisee relationship between Booxie and any of the Sellers.
4.4. Tax Consequences. Each Seller will be responsible for filing and paying its applicable taxes on all royalty payments earned. Booxie will not withhold taxes for Sellers and will not be responsible for any tax filings or payments required to be made by any Seller as a result of such Seller’s receipt of royalty payments. Sellers are advised to discuss any questions regarding the tax consequences of their earned royalties with an accountant.
5. Fees and Purchase Terms. You agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. Any required fees will be specified as part of the Service or when you register your Account. Booxie reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. Booxie may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT BOOXIE IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PRODUCTS AND SERVICES WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
6. Third Party Advertising.
6.2. Links to Third Party Sites and Dealings with Advertisers. Booxie may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Booxie makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Booxie and may collect data or solicit personal information from you. Booxie is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Booxie of these linked sites.
7. Seeking to Take Down Infringing Content. It is Booxie’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to Booxie’s “Copyright Page” to review our DMCA procedures. Booxie reserves the right to terminate without notice any user’s access to the Service if that user is determined by Booxie to be a “repeat infringer.” In addition, Booxie accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
8. Updates to the Service. You understand that the Service undergoes frequent changes. Booxie may require that you accept updates to the Service in order to continue using the Service. You acknowledge and agree that Booxie may update the Service without notifying you.
9. Disclaimer; Limitations; Waivers on Liability; Indemnification.
9.1. Disclaimer of Warranties.
(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER BOOXIE NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “BOOXIE PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE THAT PRINTED BOOXIES MAY APPEAR DIFFERENT THAN THEY APPEAR ON A COMPUTER OR MOBILE DEVICE SCREEN.
(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. BOOXIE DOES NOT GUARANTEE THAT ANY INDIVIDUAL OR ACCOUNT HOLDER WILL ALWAYS BE PREVENTED FROM VIEWING INFORMATION OR CONTENT THAT THE SERVICE INTENDED TO NOT BE AVAILABLE TO SUCH INDIVIDUAL. BOOXIE DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. BOOXIE DOES NOT WARRANT THAT THE SERVICE, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER, INCLUDING A SELLER, WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY BOOXIE OR THROUGH THE SERVICE.
9.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE BOOXIE PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE BOOXIE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE BOOXIE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE BOOXIE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID BOOXIE IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
(d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID BOOXIE ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BOOXIE IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
(e) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
9.3. Indemnification. You agree to defend, indemnify, save, and hold the Booxie Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. Booxie reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Booxie and you agree to cooperate with Booxie’ defense of these claims. Booxie will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account or of the Service.
10. How to Handle Disputes.
10.1. General. If a dispute arises between you and Booxie, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Booxie agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 10.2, you and Booxie agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 10, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
10.2. Exclusions from Arbitration. YOU AND BOOXIE AGREE THAT ANY CLAIM FILED BY YOU OR BY BOOXIE IN SMALL CLAIMS COURT OR BY BOOXIE RELATED TO PROTECTION OF BOOXIE’S OR ANY BOOXIE LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 10.
10.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 10, YOU MUST NOTIFY BOOXIE IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO BOOXIE TERMS ADMINISTRATOR, BOOXIE, LLC, 26091 PASEO MINERO, SAN JUAN CAPISTRANO, CA 92675 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH BOOXIE THROUGH ARBITRATION.
10.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND BOOXIE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
10.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Booxie elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 10 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
10.6. Arbitration Procedures. Because the software and/or service provided to you by Booxie concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Booxie as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Booxie or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
10.7. Location of Arbitration. You or Booxie may initiate arbitration in either Orange County, California or the county in which you reside. If you initiate arbitration in the county of your residence, Booxie may transfer the arbitration to Orange County, California provided that Booxie agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
10.8. Severability. If any clause within this Section 10 (other than the Class Action Waiver clause of Section 10.4) is found to be illegal or unenforceable, that clause will be severed from this Section 10 and the remainder of this Section 10 will be given full force and effect. If the Class Action Waiver (Section 10.4) clause is found to be illegal or unenforceable, this entire Section 10, except for this Section 10.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND BOOXIE EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
10.9. Survival. This Section 10 shall survive any termination of the Terms.
11. General Provisions.
11.3. Assignment. Booxie may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Booxie; any purported assignment or delegation in violation of this Section 11.3 is void.
11.4. Supplemental Policies. Booxie may publish additional policies related to specific services such as forums, contests, loyalty programs and other features and services. Your use, if any, of such services is subject to such specific policies and these Terms.
26091 Paseo Minero
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Attn: Notices Administrator
11.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Booxie are of a unique and irreplaceable nature, the loss of which shall irreparably harm Booxie and which cannot be replaced by monetary damages alone, so that Booxie shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 9.2.
11.9. Force Majeure. Booxie shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Booxie, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Booxie’ control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.