Mygazines Terms of Use
Last Updated: February 2, 2011 (superseded Terms of Use dated November 15, 2010)
These Terms of Use ("TOU") are entered into by and between Flyp Technologies Inc., d/b/a Mygazines, with offices at 171 East Liberty Street, Toronto, Ontario, M6K3P6 ("Mygazines" or "we") and the entity agreeing to these terms ("Customer" or "you"). These TOU are effective as of the date (the "Effective Date") you sign a Product License Agreement (PLA), Reseller Agreement ("RA") and/or Partnering Agreement ("PA") and any applicable PLA, RA or PA between you and Mygazines, together with all schedules, appendixes and attachments thereto, being an "Applicable Agreement". 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 these TOU; and (iii) you agree, on behalf of the party that you represent, to these TOU. If you don't have the legal authority to bind your employer or the applicable entity, please do not sign any Applicable Agreement. These TOU 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 TOU 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. Except for Mygazines approved uses of any Mygazines API (Application Programming Interface) 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). Except for Mygazines approved uses of any Mygazines API, 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. Customers may not authorize or assist any third party to do any of the things prohibited in this paragraph. Please refer to Mygazines' 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 Applicable Agreement. 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. Licenses purchased outside of a Pack such as those under the A La Carte Model are subject to the monthly page view limits outlined in the Applicable Agreement at the time of purchase.
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 is required in a lump sum at the start of the commitment to purchase Licenses and other Products. Under the A La Carte pricing model payment for licenses must be made in advance to secure discounts. In cases where Licenses or Products are allocated to the client's account on a monthly basis (i.e. Pack pricing), payment is 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. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including reasonable attorneys' fees) incurred by Mygazines in collecting delinquent amounts, except where such delinquent amounts are due to Mygazines' billing inaccuracies. You are responsible for any taxes payable in connection with this Agreement (other than income taxes of Mygazines), and you will pay Mygazines without any reduction for such amounts. If Mygazines is obligated to collect or pay taxes, the taxes will be invoiced to you.
9. Auto-Renew, Sleep Mode, Cancellation and Expiration.
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 25,000 included page views. An account in Sleep Mode is subject to Incurred Fees for additional page views, emails sent, and potential storage of uploaded publications based on the pricing at the time. A Minimum Monthly Fee applies for accounts in Sleep Mode which covers the first 25,000 page views. 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 (2 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.
Expiration – Licenses purchased outside of a Pack model such as those from the A la Carte model expire one (1) year from the time of purchase. At the one year point Mygazines will notify the customer that it must renew its contract by purchasing additional or replacement licenses for its active publications. Should the customer fail to respond or take action within thirty (30) days of notice Mygazines will delete the customer's account and any active publications will no longer be available.
Native Apps – As an exemption to any of the cancellation terms outlined in the previous scenarios in this paragraph, for Products including the Mstand App and wr(App) product which are Native Apps (those which are listed on App stores including Apple, Android or Offline Desktop App) a minimum 1 year term is required from the initial activation of each Native App. The Monthly Listing Fee for these products will recur for a minimum 12 month term from the initial Monthly Listing Fee charge. To cancel a Native App after the first 12 months a minimum of the greater of five business days notice before the next scheduled payment or the applicable App stores’ minimum advance cancellation period is required.
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 TOU, 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 TOU.
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.
Customer may opt to post content to a public newsstand or content portal offered as Mstand (including www.mstand.com or affiliated Mstand powered newsstands) from time to time. If you elect to post content on Mstand anyone may anonymously access such content. Similarly, Mygazines may use any posted content, individually, or with third parties which we may collaborate with from time to time, in connection with the advancement of the technology, research or content promotion or for any purpose.
You agree that we may list you as a client and/or use your logo for our promotional purpose unless you advise us in writing that you do not consent to our so doing.
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. Independent Contractor.
You understand and agree that you are independent company and have no authority to bind Mygazines in any way. You are solely and personally responsible for all of your employees, contractors and agents, or of any of your respective clients, and all labour costs and expenses arising in connection with them and for any and all claims, liabilities, damages and debts of any type whatsoever that may arise on account of your activities, or those of your or your client's employees, agents and contractors, in the performance of the Applicable Agreement. Except as expressly provided in any Applicable Agreement or these TOU, Mygazines shall have no right to exercise any control over you or your activities or operations.
You shall assume full responsibility for the proper reporting and payment of all federal, state, provincial and local taxes of any kind, contributions and/or special levies imposed on it or required of it under employment or unemployment insurance, social security, and/or other laws or regulations, with respect to the performance of the Applicable Agreements by your and your clients employees, agents or contractors, and you agree to indemnify and hold Mygazines harmless from any liability, loss, damage or claim arising against or incurred or paid by Mygazines by reason of any failure by you to fully or timely to assume said responsibilities.
You shall obtain such authorizations, licenses, permits and other governmental or regulatory agency approvals as are required for your performance of the Applicable Agreements.
15. Indemnification.
You agree to defend, indemnify, and hold harmless Mygazines and its 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 defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defences.
16. 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 exclusive jurisdiction of such courts for the purpose of litigating any such claim or action.
Please Note That by Agreeing to These TOU, 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.
17. Severability and Integration.
These TOU and all Applicable Agreements 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 TOU 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. To the extent of any conflict between these TOU and any Applicable Agreement, the Applicable Agreement will prevail.
18. Revisions to the TOU.
Mygazines may modify the TOU at any time. The current TOU 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 TOU.
19. Assignment/Binding Effect.
These TOU and any Applicable Agreement, may not be assigned by you without the prior written consent of Mygazines; provided, however, that Mygazines hereby consents to the assignment of this Agreement to any business entity majority owned or controlled by you or for which you are under common control. These TOU and any Applicable Agreements are binding upon any successors and permitted assigns.
20. Force Majeure
If either party shall be delayed or prevented from the performance of any act required by these TOU or any Applicable Agreement by reason of acts of God; strikes, lockouts, bans, limitations of work or other industrial disturbances; unforeseeable restrictive governmental laws, regulations or actions, including quarantine or customs restrictions; acts of war, terrorism, riots, insurrections, vandalism, or sabotage; or similar causes, without fault and beyond the reasonable control of the party obligated, performance of such act shall be excused for the period of the delay, and the period of performance of such act shall be extended for a period equivalent to the period of such delay. This does not exclude the application of the rules of law in relation to frustration of contracts.
21. Termination.
Your right to use Mygazines automatically terminates if you violate these TOU 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 prior to any such termination. 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. In no way shall the termination of any Applicable Agreements relieve you from paying to Mygazines any amounts then owing by you to Mygazines. Sections 3, 8, 11, 12, 13, 14, 15, 16, 17, 19 and 21 shall survive the expiration or termination of any Applicable Agreements.
