Effective Date: May 24, 2018
This agreement changed on the date listed above.
See an explanation of the changes at the end of this document.
This Agreement is in addition to End User License Agreements (each, a “EULA,” and collectively, the “EULAs”) or other terms (collectively with the EULAs, “Supplemental Terms”) provided in connection with the App, other components of our Service, or in connection with any of the products or features available through the Service. Such Supplemental Terms are incorporated herein and by agreeing to this Agreement you are agreeing to be bound by such Supplemental Terms, as they may be in effect from time to time, to the extent that you use the App, other components of our Service, or such products or features. For some components of our Service, we provide Supplemental Terms, localized for specified foreign countries or regions, that apply to such components or to customers in specified countries or regions. Those localized Supplemental Terms govern the services and the end users specified therein.
2. Limited License to Digital Content
A. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this Agreement and any applicable Supplemental Terms (including, without limitation, payment of any applicable fees, including fees for Digital Content you license), the Company grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access the Digital Content for your personal, non-commercial use. Such license does not confer on you any ownership interest in such Digital Content. Words such as “purchase” or “sale” (and similar terms, including all tenses), as applied to Digital Content (including any Digital Content the Company makes available for free), refer to the grant to you of a limited license as described herein.
B. We may, in our sole discretion, make available to you a DRM-Free Backup (“Backup”) of certain Digital Content. Backups are digital files without access control features designed to prevent you from copying the files to your computer or other compatible device. They are provided in addition to and not instead of the primary versions of the Digital Content to which they relate and will not have all of the features and functions (such as our proprietary Guided View reading mode) of the primary versions of the Digital Content. Backups are Digital Content for purposes of this Agreement, are provided solely for your personal, non-commercial use, may not be transferred to others, and are subject to all of the terms of this Agreement, except that you may copy Backups solely for your personal, non-commercial use. Backups may contain unique identifiers associating each Backup with your account and your download of the file from our Service. Those identifiers will not contain your personally identifiable information and will not be visible to you. In our sole discretion, we may limit the number of Backups that you download from our Service for each primary version of Digital Content.
3. Limitations on Use
A. You may not sell, rent, lease, lend, transfer, assign, sublicense, share any rights to, reproduce, distribute, publicly display or perform, modify, or prepare any derivative work based on the Service, or publish or otherwise make the Service available to others. You may not, and may not encourage, authorize, or assist others to, (a) reverse engineer, decompile, disassemble, or in any way access or attempt to access the source code for the Service, or make or attempt to make any modification to the Service, (b) modify, defeat, interfere with, or circumvent any feature of the Service, including any security or access control mechanism, including features requiring payment of the applicable purchase price for any Digital Content, (c) attempt to probe, scan or test the vulnerability of the Service or to breach any security or authentication measures, regardless of your motives or intent, (d) attempt to damage, interfere with, or disrupt the Service to any user, processor, host or network, including by submitting a virus, worm, or Trojan horse, (e) attempt to disguise the origin of any message or transmittal that you send to or through the Service, including by forging headers or otherwise manipulating identifiers, (f) pretend that you are, or that you represent, someone else or impersonate any other individual or entity, (g) intercept any system data, personal information, or other data relating to the Service, (h) remove any proprietary notices or labels on the Digital Content or other components of the Service, (i) access or use the Service for any unlawful purpose, (j) take any action that would impose an unreasonable or disproportionately large load on our network or other infrastructure, or (k) use or launch any automated system, including any "deeplink", "page-scrape", "robot," "spider," "offline readers," or other method or system that accesses, acquires, copies, or monitors any part of the Service in a manner that sends more requests to the Company’s servers or other infrastructure in any period of time than a human being could reasonably produce in the same period of time by conventional manual means (provided that the Company grants the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials, and the Company reserves the right in its sole discretion and at any time to revoke such permission either generally or in specific cases).
B. The Company reserves the right to revoke your license to the Digital Content if you violate the terms of this Agreement, any applicable Supplemental Terms, or the Company cannot lawfully continue to permit such license. You acknowledge and agree that Digital Content may not be available to view, use or display under certain conditions, such as due to restrictions imposed by owners or licensors of Digital Content or if the Company or the owner or licensor of the Digital Content no longer has the legal rights necessary to authorize distribution of that Digital Content. The Company may modify or discontinue the offering of any Digital Content at any time. If a unit of Digital Content becomes unavailable before you access it but after you purchase it, your sole and exclusive remedy, and the Company’s sole and exclusive obligation, is a refund of the purchase price paid for such Digital Content. Any unauthorized use by you of the Digital Content automatically terminates the license set forth in this Agreement, without prejudice to any other remedies provided by applicable law or this Agreement.
C. If you are prohibited under applicable law from using the Service you may not use it.
D. You must be at least thirteen (13) years old to use the Service, except to the extent that a different minimum age is stated in any applicable Supplemental Terms, in which case such different minimum age applies to the services covered by such Supplemental Terms. Use of the Service by anyone under the age of thirteen (13) (or under such other age as may apply under applicable Supplemental Terms) is unauthorized and unlicensed. In all cases, if you are under eighteen (18) years old, you may only use the Service with the approval of your parents or guardian.
E. Use of the Service for a commercial purpose is unauthorized and unlicensed.
4. Intellectual Property and Other Rights
The Service is owned and operated by the Company. The Digital Content, software, visual interfaces, interactive elements, features, information, graphics, design, compilation, computer code, products, look and feel, and all other elements of the Service (the “comiXology Materials”), are protected by the laws of the United States and other jurisdictions relating to the protection of intellectual property and proprietary rights, including copyright, patent, trade dress, and trademark laws, as well as laws relating to data protection and security. All comiXology Materials, including intellectual property rights therein and thereto, are the property of the Company or its subsidiaries or affiliated companies and/or third-party licensors. You may not reproduce, distribute, rent, lease, sell, license, copy, modify, publicly perform or display, transfer, transmit, publish, edit, adapt, prepare derivative works based on, or otherwise use the comiXology Materials except as expressly authorized by this Agreement. The Company reserves all rights not expressly granted in this Agreement. You shall not acquire any right, title or interest in or to the comiXology Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement.
5. Reporting Infringement
We respect the intellectual property rights of others. If you believe that any content on the Service infringes your intellectual property rights, you should contact us using the information in section 25 and provide sufficient information for us to investigate the claim further.
If you wish to submit a notification of copyright infringement under the Digital Millenium Copyright Act, please submit a written notice that includes (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site, (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted, (e) a statement 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 that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our agent to receive notices of claimed copyright infringement is:
512 Seventh Avenue, 12th Floor
New York, NY 10018
firstname.lastname@example.org (subject: DMCA Notice)
We personalize content and features as part of the Service provided in this Agreement, including by showing you recommendations on features, content and services which might be of interest to you.
8. Fees and Payment
Certain features of the Service, such as purchasing a license to view certain Digital Content, require the payment of fees. All such fees must be paid in advance. All transactions are final and, except as expressly provided herein, the Company does not issue any refunds. The Company reserves the right to modify prices and fees applicable to future transactions at any time for any reason in its sole discretion.
9. Third Party Fees
The use and operation of your mobile or other device and your use of mobile or fixed network services in connection with your use of the Service may be subject to separate third party terms of service and fees (such as roaming, data, and other applicable fees charged by your mobile network operator). You are solely responsible for payment of any and all such fees and compliance with any and all applicable terms.
10. User Postings and Third Party Content
A. Certain features of our Service may enable you or other end users to post on our Service, or submit to us, content, including text, data, photographs, graphics, images, information, video clips, audio clips, and any combination of these elements (“User Postings,” which shall include the name you use in connection with such postings and any comments or suggestions you make regarding the Service). You grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, sub-licensable (through multiple tiers), right, in any media existing now or in the future, to use, copy, reproduce, distribute, publicly display, publicly perform, edit, modify, adapt, translate, exploit, and prepare derivative works based on (collectively, “Use”) your User Postings. By submitting User Postings, you represent and warrant to us that you own all of the rights to such User Postings and that Use (as defined above) of your User Postings does not and will not (i) violate any applicable law or (ii) violate the rights of, or cause physical, financial, or other harm to, any person or entity. You acknowledge that your indemnification obligation as described in Section 16 applies to your User Postings. Your User Postings may be Used with or without the name you use in connection with such postings. You agree that the Company is not responsible for User Postings, whether by you or anyone else.
B. You acknowledge that content similar or identical to your User Postings (“Similar or Identical Content”) may have been or may in the future be submitted to the Company by other persons, or may have been or may in the future be made public by other persons. You agree that you are not entitled to any compensation from the Company, will not assert any claim against the Company, and the Company will not be liable to you, for any matter relating to such Similar or Identical Content, including the reproduction, sale, distribution, public display, public performance, exploitation of, and the making of derivative works based on such Similar or Identical Content. You acknowledge that it would not be feasible for the Company to offer features involving User Postings without your agreement to the terms of this section 10.B.
C. Our Service (including User Postings) may contain links to various third party websites and services. Those sites and services are not under our control. Those sites and services may have their own terms of service and other policies, which we strongly suggest you review if you visit them or utilize them. We are not responsible for any aspect of those third party sites or services.
11. Changes to this Agreement
The Company may change this Agreement at any time and without prior notice to you. If the changes are material, the Company may notify you of such changes by posting or displaying a notice on this page or otherwise on our Service, by email, or by any other method we choose in our discretion. Changes are effective (the “Effective Date”) when the revised Agreement is made available through our Service or through any other method the Company chooses, or at any later date specified in the revised Agreement. Your use of the Service after a change is effective will be governed by the Agreement as changed. You should review this Agreement regularly while you are connected to the Internet so that you are aware of the most current rights and obligations relating to use of the Service. The Agreement will note the effective date of each version.
The Company may terminate the Service and block or disable your access to the Service at any time, except as prohibited by applicable law.
13. Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED "AS IS," “WITH ALL FAULTS” AND “AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND. THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. THE COMPANY MAKES NO REPRESENTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, OF ANY KIND, REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, APPROPRIATENESS, AND TIMELINESS OF ANY CONTENT AVAILABLE THROUGH THE SERVICE. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. THE COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE, TABLET, LAPTOP OR DESKTOP DEVICE, COMPUTER SYSTEM, OTHER HARDWARE, OR SOFTWARE, OR FOR ANY LOSS OF OR DAMAGE TO DATA THAT MAY RESULT FROM YOUR USE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND ITS AFFILIATES, AND THEIR SUCCESSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS AND BUSINESS PARTNERS (COLLECTIVELY, THE “COMPANY AND ASSOCIATES”) WILL NOT BE LIABLE FOR LOSS OF BUSINESS, REVENUE, OR PROFITS, OR LOSS OF OR DAMAGE TO DATA, EQUIPMENT, OR SOFTWARE, ARISING OUT OF OR RELATING TO THE SERVICE, OR ANY DAMAGES ARISING OUT OF OR RELATING TO UNLICENSED OR UNAUTHORIZED USE OF THE SERVICE, OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT THE COMPANY AND ASSOCIATES HAVE BEEN ADVISED OF, KNOW OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE TOTAL LIABILITY OF THE COMPANY AND ASSOCIATES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USE OF THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE YOUR CLAIM AROSE, OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. SOME JURISDICTIONS MAY NOT ALLOW LIMITATIONS OF LIABILITY, AND, ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
15. Basis of the Bargain and Risk Allocations
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE COMPANY HAS OFFERED THE SERVICE, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THOSE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE AN ESSENTIAL PART OF THE BARGAIN BETWEEN YOU AND THE COMPANY. THE COMPANY WOULD NOT BE ABLE TO PROVIDE THE SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE DISCLAIMERS AND LIMITATIONS.
You agree to indemnify, defend, and hold harmless the Company and Associates against any losses, liabilities, claims, causes of action, and expenses (including, but not limited to, reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to your use of the Service, your violation of this Agreement or any applicable Supplemental Terms, or your violation of any applicable law or regulation.
Any dispute or claim relating in any way to your use of
the Service, or to any products or services sold or distributed by or through
us will be resolved by binding arbitration, rather than in court, except
that you may assert claims in small claims court if your claims qualify. The
Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98051. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not to seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
18. Applicable Law
By using the Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and the Company.
19. Legal Restrictions
Use of the Service is unauthorized and unlicensed wherever it is unlawful under applicable law. You may not use the Service at any place or in any manner that would violate any applicable technology control, export, or import laws. Any offer of any feature, product or service is void where prohibited. The Company may limit or deny to any person, in its sole discretion, access to any feature, product or service.
If any provision of this Agreement is held to be unlawful, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect, and to the maximum extent permitted by applicable law, the illegal, invalid or unenforceable provision shall be amended to achieve as closely as possible the common intentions of the parties as expressed in the original term.
21. Captions and Terminology
The title of and captions in this Agreement are for the convenience of the reader and shall not affect the interpretation of the Agreement. The terms “include,” “includes,” “including,” and “such as” mean “include, without limitation,” “includes, without limitation,” “including, without limitation,” and “such as, but not limited to,” respectively.
The Company may, in its sole discretion, assign its rights and/or delegate its duties under this Agreement. You may not assign your rights or delegate your duties, and any assignment or delegation without the written consent of the Company, which the Company may withhold in its sole discretion, shall be void.
23. Entire Agreement
This Agreement is the entire agreement between you and the Company with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, and representations, whether oral or written, regarding the subject matter hereof. This Agreement may be changed only by the Company as described in Section 11, or by a written agreement signed by you and an authorized executive officer of the Company.
24. No Waivers
Failure by the Company to exercise, or delay in exercising, a right, power, or remedy available under this Agreement or applicable law shall not constitute a waiver of that right, power or remedy. Waiver by the Company of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or other breach of this Agreement.
25. Contacting the Company
The Service is offered by Iconology, Inc. You may contact us at email@example.com; 512 Seventh Avenue, 12th Floor, New York, NY 10018, U.S.
Recent Changes to the Agreement
We updated the Agreement on the date listed at the top of this Agreement. Below is a list of sections we changed. You should carefully review the revised Agreement in its entirety to ensure you understand fully all terms of the revised Agreement.
· We modified the law that governs this Agreement and any dispute of any sort that might arise between you and the Company.
· We added an arbitration provision that governs the forum in which those disputes will be heard.