Mygazines Terms of Use
Last Updated: Sept 1, 2010
This Mygazines Terms of Use Agreement (the "Agreement") is entered into by and between Mygazines , a Flyp Technologies Inc. company, with offices at 171 East Liberty Street, Toronto, Ontario, M6K3P6 ("Mygazines" or "we") and the entity agreeing to these terms ("Customer" or "you"). This Agreement is effective as of the date you sign the Product License Agreement (PLA) which accompanies this Agreement (the "Effective Date"). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not sign the PLA. This Agreement governs Customer's access to and use of the Service.
1. Background.
Mygazines is a Service that enables clients to convert static documents into digital editions. Customers use the service to create digital editions of magazines, newspapers, newsletters, catalogues, corporate documents, and other content. Customers have access to tools to restrict access, charge for content and monitor engagement of such content.
Customers use a "License" to upload each individual file. One License allows for the upload of one file. Mygazines may offer other "Products" which include emails sent, page views, custom URL domains and other account specific requirements.
2. License to Use the Mygazines Service.
Upon agreeing to the Terms of Use and paying for Services from Mygazines, the Customer will have access to create the agreed upon number of digital editions for the term of the subscription. In general, the Service will be available 24 hours a day, 365 days a year. Mygazines reserve the right to take the service down for periodic maintenance and upgrades. Server outages and slow performance are possible, though they are not likely to be frequent or sustained.
3. Use of Services.
Mygazines make Services available for you to create digital publications. The software and service is protected by copyright and other intellectual property laws and treaties and is owned by Mygazines or our suppliers. You may not sell or redistribute the service without the prior written consent of Mygazines. Customers may not incorporate it or any portion of it into another product. Customers may not reverse engineer, decompile, or disassemble the service or otherwise attempt to derive the source code (except where expressly permitted by law). Customers may not modify, adapt, or create derivative works from the service in any way or remove proprietary notices. Customers agree to abide by all laws and regulations in effect regarding use of the Service. Customersmay not authorize or assist any third party to do any of the things prohibited in this paragraph.
Please refer to Mygazines's privacy policy, available at (the "Privacy Policy") for information on how Mygazines collects, uses and discloses personally identifiable information from its users. By using the Site Customers agree to our use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
4. Electronic Notification.
You authorize us to provide you with required notices, agreements and information concerning Mygazines electronically. Mygazines will provide you our notices either by sending them to the e-mail address that you give to us or by posting the notices on the home page of Mygazines or on the relevant web page of the applicable service. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of Mygazines.
5. Registration.
If Customers sign up to use Mygazines, you agree to provide us with current and true information and you must be legally competent to enter into contracts and authorized to act as an agent of your company.6. Changes to Mygazines.
Mygazines may offer new features from time and other features may be discontinued or changed at any time and without notice. Upgrades and changes in the software may result in changes in the appearance and functionality of your digital publications. Mygazines will use commercially reasonable efforts to notify Customers of any such changes.
7. Pricing.
Licenses and other Products including any overages are charged at defined costs as outlined in the PLA form. Mygazines may change the price of any of its services without notice; however, reasonable notice will be provided to existing customers before any such changes take effect should they represent an increase in price. For Monthly "Pack" Pricing (i.e. Professional, Publisher and Firmdox Packs) any Licenses and Page Views included are for use in the current month for which payment is made. Licenses and Page Views do not accumulate or carry forward month to month. The number of Licenses and included Page Views in a Customer’s account will be replenished on the first of each month to the level associated with the purchased Pack upon successful processing of payment.
8. Payment.
Unless otherwise agreed to in writing between you and Mygazines, amounts due shall be paid in U.S. dollars in advance of the start of Services. Mygazines requires a valid credit card on file regardless of the agreed method of payment. Payment can be made in a lump sum at the start of the commitment to purchase Licenses and other Products. In cases where Licenses or Products are allocated to the client’s account over the term of the agreement or on a monthly basis, payment may be permitted in monthly increments. Licenses or Products will be applied to the Customer’s account only after payment, in full, is processed for such Licenses or Products. If payment is to be made in monthly instalments Mygazines will charge the credit card number on file at the start of each month. After payment has been successfully processed the Licenses or Products will be allocated to the client's account. There will be no grace period. Fees for services will be fully earned and non-refundable when Services are first made available for your use.
Unless otherwise agreed to in writing between the Customer and Mygazines, any overages associated with your use of Services including but not exclusive to page views, and emails sent will be automatically charged to your credit card at the start of the month after which the overages were consumed.
9. Auto-Renew, Sleep Mode and Cancellation.
Auto Renew - For any continual service Products including monthly pricing agreements in the absence of specific instructions to discontinue use of the service at the end of a subscription term (including a monthly Pack commitment), the term will auto-renew. Clients must inform Mygazines at least ten (10) business days prior to the next scheduled payment to cancel the auto-renewal; otherwise the new subscription term is non-cancellable and non-refundable.
Sleep Mode - Should a client wish to put an account where recurring monthly Pack fees apply into “Sleep Mode”, specific minimum and Incurred Fees apply. Sleep Mode refers to an account which cannot upload new licenses or publications, but where its archived licenses can be viewed by the account holder and its readers. An account in Sleep Mode has zero (0) included page views. An account in Sleep Mode is subject to Incurred Fees for page views, storage of uploaded publications and emails sent based on the pricing at the time. A Minimum Monthly Fee applies for accounts in Sleep Mode which includes credit towards Sleep Mode Incurred Fees. The Minimum Monthly Fee is charged at the start of the month for which the period applies. Incurred Fees above the Minimum Monthly Fee are charged on the first day of the following month for which those fees are incurred based on account usage.
Cancellation - Should a Customer wish to “Cancel” an account there will be no further fees, beyond incurred overages, as long as proper notice is provided (10 business days prior to the next scheduled payment). When cancelling an account Mygazines may delete all publications associated with the Cancelled account. Deleted publications cannot be recovered.
10. Your Responsibilities.
You may use Mygazines and its technology for lawful purposes only. You may not use Mygazines to distribute any material, or otherwise engage in any conduct that:- violates or infringes the rights of others including, without limitation, patent, trademark, trade secret, copyright, publicity or other proprietary rights;
- is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, obscene, invasive of another's privacy or tortuous;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; impersonates any person, business or entity, including our employees and agents;
- contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
- encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
- offers, promotes or encourages betting or wagering prohibited by law;
- violates these Terms of Use, guidelines or any policy posted on Mygazines, or
- Interferes with the use of Mygazines by others.
- damages or impair our servers or networks. You may not interfere with any other party's use and enjoyment of Mygazines. You may not attempt to gain unauthorized access to our services, user accounts, computer systems or networks. We may take any legal and technical remedies to prevent the violation of these Terms of Use.
Mygazines has zero tolerance for SPAM. If you are a user of our Subscription Management Module, please ensure your e-delivery campaign emails do not breach our Anti-Spam Policy.
11. Confidentiality.
The Mygazines platform contains mechanisms (such as the Subscription Management Module or Remote Security API Settings) which allow you to limit access to your content. It is the Customer’s responsibility to ensure that these mechanisms have been enabled to restrict access to content which may be deemed to be classified as confidential. Mygazines will put its best efforts in place to ensure its mechanisms for controlling access to content are performing as intended, but does not take responsibility or assume liability for content which makes its way into the public domain. Mygazines has access to your content for troubleshooting purposes. Mygazines will not distribute your content without your permission. Should one of your readers redistribute your confidential content Mygazines does not take responsibility or assume liability for such action.
12. Disclaimer of Warranties.
We provide Mygazines "as is", "with all faults" and "as available". We and our suppliers make no express warranties or guarantees about Mygazines. To the extent permitted by law, Mygazines and our suppliers disclaim implied warranties that Mygazines and all services distributed through Mygazines are merchantable, of satisfactory quality, accurate, timely, fit for a particular purpose or need or non-infringing. We do not guarantee that Mygazines will meet your requirements, is error-free, reliable, without interruption or available at all times. We do not guarantee that the results that may be obtained from the use of Mygazines, including any support services, will be effective, reliable, accurate or meet your requirements. We do not guarantee that you will be able to access or use Mygazines (either directly or through third-party networks) at times or locations of your choosing. No oral or written information or advice given by any of our representatives shall create a warranty. You may have additional consumer rights under your local laws that this contract cannot change.13. Limitation of Liability.
Your exclusive remedy regarding any service provided by us shall be the replacement of any such service found to be defective. Your sole and exclusive remedy for any other dispute with us is to discontinue your use of Mygazines. In no event shall our liability or the liability of our parent and our suppliers for any and all claims relating to the use of Mygazines exceed the total amount of service fees that you paid us during a one-year period for the specific service at issue.We and our suppliers shall not be liable for any indirect, special, incidental, consequential or exemplary damages arising from your use of, inability to use, or reliance upon Mygazines. These exclusions apply to any claims for lost profits, lost data, loss of goodwill, work stoppage, computer failure or malfunction, or any other commercial damages or losses, even if we knew or should have known of the possibility of such damages. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability, and the liability of our suppliers, shall be limited to the extent permitted by law.
14. Indemnification.
Upon a request by us, you agree to defend, indemnify, and hold harmless us and other affiliated companies, and our respective employees, contractors, officers, directors, and agents from all liabilities, claims, and expenses, including attorney's fees that arise from your use or misuse of Mygazines. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.15. Choice of Law and Location for Resolving Disputes.
You agree that the laws of the Province of Ontario, Canada govern this contract and any claim or dispute that you may have against us, without regard to Ontario’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the Province of Ontario and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.Please Note That by Agreeing to These Terms of Use, You Are: (1) Waiving Claims That You Might Otherwise Have Against Us Based on the Laws of Other Jurisdictions, Including Your Own; (2) Irrevocably Consenting to the Exclusive Jurisdiction of, and Venue in, Province of Ontario over Any Disputes or Claims You Have With Us; and (3) Submitting Yourself to the Personal Jurisdiction of Courts Located in the Province of Ontario for the Purpose of Resolving Any Such Disputes or Claims.
16. Severability and Integration.
This contract, the PLA and any supplemental terms, policies, rules and guidelines posted on Mygazines constitute the entire agreement between you and us and supersede all previous written or oral agreements. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.17. Revisions to this Agreement
Mygazines may modify this agreement at any time. The up-to-date agreement will be available on the Mygazines Web site. Your continued use of the Service after changes have been made constitutes your acceptance of the revised agreement.18. Termination.
Your right to use Mygazines automatically terminates if you violate these Terms of Use or any rules or guidelines posted in connection with Mygazines. We also reserve the right, in our sole discretion, to terminate your access to all or part of Mygazines, for any reason, with or without notice. Where possible, Mygazines will use commercially reasonable efforts to notify Customers of any need to terminate this agreement. Customer agrees that Mygazines shall not be liable to Customer, any End User, or any third party for any modification, suspension, or termination of the Service. Sections 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 shall survive the expiration or termination of this Agreement.
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