Terms of Use - OpenBooks.com

Agreement. These terms of use (“these TOU”) constitute a binding agreement between the person or entity that is accepting these TOU (“you”) and OpenBooks Limited (together with its affiliates, “OpenBooks” or “we”) with respect to your use of the OpenBooks.com website (together with any successor or replacement website, and including all software that comprises or is used to operate it, the “Site” or “OpenBooks.com”). Through the Site, we provide a service (the “Service”) through which we market and distribute books and other items of digital content (“Digital Content Items”) that we receive from people who use the Site (“Users”) to other Users and other people who do not use the Site but may read the Digital Content Items downstream (collectively “End-Users”).
Term. The term of these TOU will begin upon your acceptance of these TOU and will continue for as long as you use the Site either directly or through our mobile application (the “OpenBooks App”).
Scope. Anything you do on or through the Site, directly or through the OpenBooks App, is governed by and subject to these TOU.
1. If you just want to browse the Digital Content Items that are available on the Site, you don’t have to register or do anything in order to use the Site.
2. If you want to download a Digital Content Item that has been uploaded by other Users, you also do not have to register in order to use the Site, but as an End User, you will be required to agree to the End-User License in that Digital Content Item before you can download it.
3. If you want to post comments on a Digital Content Item on the Site (“User Comments”), post reviews of Digital Content Items (“User Reviews”), create an avatar that will enable your User Comments and User Reviews to be attributed to you, and maintain a Virtual Shelf (which is described in Section 5 below) you need to become a “Registered User”, which requires setting up a “User Account” as described in Section 5 below.
4. If you want to upload and maintain your own Digital Content Items through the Site, then in addition to becoming a Registered User, you will be required to agree to the OpenBooks Publishing Agreement and provide certain additional information in your User Account.
Amendment. If we make any changes to these TOU, we will let you know by e-mailing you at the address given in your User Account and/or by posting a notice of the changes conspicuously on the home page of the Site for at least 15 (fifteen) days before the changes take effect. YOUR CONTINUED USE OF THE SITE FOLLOWING OUR NOTIFICATION OF CHANGES TO THE AGREEMENT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO SUCH CHANGES, DO NOT USE THE SITE.
User Account, Password Security, E-Mails
1. To become a Registered User, you must set up a User Account. You may set up only one such account. You can set up (and log into) your User Account through the Site or through Google Plus, Facebook, Twitter, and whatever other third-party services we identify.
2. To set up your User Account, you will need to provide your real name, a valid street address, a valid e-mail address, and any other information that we ask for. (If you want to distribute a Digital Content Item, you will need to provide us with additional information that we require for that purpose.) All information you provide to us in connection with establishing your User Account must be accurate and must remain accurate for as long as you use the Site. You may not use a false identity or impersonate any person. If you do so, we may terminate your User Account immediately as described in Section 18 below. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify all information you provide in connection with your User Account.
3. To set up your User Account, you also will need to set up a password. Your password may be used only to access the Site. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party except for any third party whom you authorize to use your User Account. You will be solely responsible for any use of or action taken under your password on the Site. If your password is compromised, you must change it immediately.
4. From time to time, we may send you e-mails concerning the Site, the Service, OpenBooks, and other subjects that we think may be of interest to you as a User (or, if applicable, a publisher), at the e-mail address in your User Account.
End-User Payments. We will make one or more merchant processing services, (each, a “Payment System”) available to you to make payments for Digital Content Items that you download (“End-User Payments”). Any End-User Payment you make will be subject to the terms of use of whatever Payment System you use. Any problem you may have in making an End-User Payment through any Payment System or any dispute you may have with any Payment System about an End-User Payment is solely between you and such Payment System.
Virtual Shelf. If you are a Registered User, you will have access to a virtual bookshelf where you will be able to keep a list of downloaded Digital Content Items (a “Virtual Shelf”). You will be able to access and download each Digital Content Item on your Virtual Shelf as many times as you wish (subject always to the End-User License). If you have paid for a Digital Content Item, you will be able to access it and download it even if the author or publisher of that Digital Content Item withdraws it from the Site, unless we have to withdraw that Digital Content Item from the Service because of a copyright infringement or other legal claim. Other Users will be able to see your Virtual Shelf unless you choose to keep it private.
Intellectual Property. We own and will retain all right, title and interest, including, without limitation, applicable copyright and patent rights, in the Site and all underlying software, the OpenBooks App, the OpenBooks content that appears on the Site, and the OPENBOOKS and OpenBooks.com trademarks (the “OpenBooks Trademarks”) (collectively, “OpenBooks Intellectual Property”). Each User who uploads a Digital Content Item to the Site owns such User’s own trademarks and the content in that Digital Content Item (“Publisher Intellectual Property”). Other entities, including affiliates of OpenBooks, own their respective trademarks, service marks, and content (“Other Third-Party Intellectual Property”). OpenBooks Intellectual Property, Publisher Intellectual Property, and Other Third-Party Intellectual Property together constitute “Site Content”.
Posting of User Content on the Site
1. You are solely responsible for the contents of any User Comments, User Reviews, and any other content that you publish or display (“post”) on the Site (collectively, “User Content”) and the consequences of posting or publishing such User Content on the Site.
2. By posting any User Content to the Site, you grant, and you represent and warrant that you have the right to grant, OpenBooks and its affiliates an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to reproduce, publicly display, and publicly perform that User Content on the Site, distribute copies of that User Content to the public through the Site and the Service, and prepare derivative works of such User Content and incorporate such User Content into other works that we may reproduce, publicly perform and publicly distribute, and do anything else with that User Content, all as may be expected in connection with the Site and the Service, and to grant and authorize us to sublicense all of these rights to third parties. See also the Representations and Warranties in Section 12.
3. This means that with respect to any User Content that you post, (i) you created such User Content yourself; (ii) if you did not create such User Content yourself, or if such User Content contains any content created or owned by anyone else, such as a quotation or a sound recording, you have written permission from that person or company to post, show, play, and distribute copies of such User Content on the Site; and (iii) if such User Content includes any name or photo, voice, or footage of any person, you have written permission to post, show, play and distribute copies of that name, photo, voice or footage as part of such User Content on the Site. If such User Content does not meet these requirements, and someone threatens to sue us or actually does sue us as a result of your posting it on the Site, you will have to defend and/or indemnify us as provided in Section 13. See also the Representations and Warranties in Section 12.
4. We have the right but not the obligation to review any User Content and remove it or take other action if we determine that it fails to comply with these rules or that it contains content that is not appropriate for posting on the Site (“Inappropriate User Content“). Inappropriate User Content includes material, or links to material, that:
  1. Is patently offensive to the online community, such as content that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual;
  2. Harasses or advocates harassment of another person;
  3. Involves the transmission of “junk,“ “chain letters,“ or unsolicited mass mailing or “spamming“;
  4. Is false, misleading, or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory, or libelous;
  5. Contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);
  6. Exploits people under the age of 21 in a sexual or violent manner or solicits personal information from anyone under the age of 21;
  7. Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
  8. Solicits passwords or personal identifying information for commercial or unlawful purposes from other users; or
  9. Facilitates or constitutes part of commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes.
Limitations on Use of the Site
1. You may not use any information obtained through the Site (a) to harass, abuse, stalk, or otherwise harm another User or any other person, or (b) to contact, advertise to, solicit, or sell to any User without that User’s express prior written consent.
2. User Comments made by others are made available to you for your information and personal use solely within the normal functionality of the Site. You may not copy, transmit, broadcast, display, download or otherwise exploit any third-party User Comments in any manner not intended by the normal functionality of the Site.
3. You may not circumvent, disable or otherwise interfere with security-related features of the Site or any Digital Content Item.
Copyright Protection Policy. If you believe that User Content or a Digital Content Item that you own has been posted on the Site without your permission, please provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Site; your address, telephone number, and e-mail address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Our Copyright Agent can be reached as follows: legal@openbooks.com.
Representations and Warranties. In addition to any representations and warranties that you have made elsewhere in these TOU, you represent and warrant that you have the right, authority, and capacity to enter into and abide by these TOU;; you will not post any User Content that infringes any third-party copyright, trademark, patent or trade secret rights you do not have the legal right to post; no posting by you of any User Content will violate the statutory or common-law right of privacy of any person; and no User Content that you post on the Site will defame any person, violate any person’s right of publicity, or infringe or violate any other right of any other person or entity
Indemnification Obligations. To the fullest extent permitted by applicable law, you will defend and/or indemnify, and hold harmless us and our affiliates, subcontractors, licensees, and assigns, and our and their officers, directors, agents, and employees (the “OpenBooks Parties”) from and against any loss, liability, damage, (including reasonable attorneys' fees) arising from or relating to any claim or action arising out of an actual or alleged breach of your representations, warranties or obligations set forth in this Agreement (each, a “Claim”). Any OpenBooks Party will be entitled to participate in the defense and settlement of the Claim with counsel of its own choosing, and you may not in any event settle any Claim without the prior written consent of such OpenBooks Party. We reserve the right to assume, or have any OpenBooks Party assume, the exclusive defense and control of any Claim subject to indemnification by you, and you will cooperate as we or such OpenBooks Party may require in the defense of any Claim.
Disclaimer of Warranty. THE SITE IS PROVIDED “AS IS.“ WE SPECIFICALLY DISCLAIM, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SITE AND ANY DIGITAL CONTENT ITEM OFFERED OR PROVIDED THROUGH THE SITE. WE DO NOT GUARANTEE THAT ANY PARTICULAR DIGITAL CONTENT ITEM WILL BE AVAILABLE ON THE SITE AT ANY TIME, OR THAT, IF IT IS AVAILABLE, IT WILL REMAIN AVAILABLE OR THAT IT WILL MEET YOUR EXPECTATIONS. ANY OPINION, ADVICE, STATEMENT, SERVICE, OFFER, OR OTHER INFORMATION OR CONTENT (EACH, A “STATEMENT”) PRESENTED, EXPRESSED OR MADE ON THE SITE OR IN ANY DIGITAL CONTENT ITEM IS THAT OF THE AUTHOR OR SUCH STATEMENT OR DIGITAL CONTENT ITEM, NOT OPENBOOKS. WE DO NOT ENDORSE AND WE ARE NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY STATEMENT PRESENTED, EXPRESSED OR MADE ON THE SITE OR IN ANY DIGITAL CONTENT ITEM. IF ANY DIGITAL CONTENT ITEM STATES THAT IT IS IN THE PUBLIC DOMAIN, WE HAVE NOT VERIFIED THE ACCURACY OF THAT STATEMENT AND WE ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES THAT MAY RESULT FROM YOUR USING THE DIGITAL CONTENT ITEM. WE ALSO DISCLAIM ANY WARRANTY ABOUT THE ACCURACY, USEFULNESS, SAFETY, TIMELINESS, OR ANY OTHER ASPECT OF ANY SITE CONTENT OR ANY PAYMENT SYSTEM.
Limitation of Liability. IN NO EVENT WILL WE OR ANY OF THE OPENBOOKS PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THESE TOU OR YOUR USE OF THE SITE OR THE SERVICE OR ANY PAYMENT SYSTEM, INCLUDING, WITHOUT LIMITATION, THE OPERATION OR FAILURE TO OPERATE OF THE SITE OR ANY PAYMENT SYSTEM, OR ANY SYSTEM OR PROCESS FAILURE, INTERRUPTION, INACCURACY, OR ERROR, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL OUR AND/OR THEIR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING OUR AND/OR THEIR OWN NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY) EXCEED THE TOTAL AMOUNT THAT YOU PAID, IF ANY, FOR DIGITAL CONTENT ITEMS.
Release. IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SITE, YOU HEREBY RELEASE US AND THE OTHER OPENBOOKS PARTIES FROM ANY INVOLVEMENT WITH AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUEN-TIAL, SPECIAL, EXEMPLARY, PUNITIVE OR RELIANCE LOSSES OR DAMAGES, KNOWN AND UNKNOWN, OF ANY KIND AND NATURE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE BETWEEN YOU AND ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE. IF YOU ARE A CALIFORNIA RESIDENT, IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE: “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“.
Force Majeure. We will not be liable to you for any failure or delay in the performance of our obligations under these TOU caused by any event or circumstance beyond our control, including, but not limited to, denial-of-service attacks, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, and labor conditions.
Termination and Suspension. In addition to our other rights of termination stated in these TOU, we are entitled to terminate your access to the Site and the Service at any time, including, without limitation, if we stop offering the Service, or if we determine, in our sole discretion, that your use of the Site or the Service is objectionable or is contrary to the intended purposes of the site or the Service, with or without notice to you. We may also suspend your User Account at any time with or without notice to you, for any reason in our discretion. If we close your User Account, we may prohibit you from using the Site Without limiting the foregoing, it is our policy to terminate access to the Site and the Service of any User who repeatedly violates these Terms of Use or any third-party rights.
Privacy Policy. For our privacy policy, CLICK HERE.
Disputes. Any dispute or claim relating in any way to these TOU, the Site or the Service will be resolved by binding arbitration, rather than in court, conducted by JAMS (www.jamsadr.com) in New York County, New York, U.S.A. You and 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, you and we each waive any right to a jury trial. You or we may bring suit in court on an individual basis only, and not in a class, consolidated or representative action, to apply for injunctive remedies. You may bring any such suit for injunctive remedies only in the courts located in New York County, New York, U.S.A. YOU HEREBY EXPRESSLY AND IRREVOCABLY CONSENT TO AND WAIVE ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS WITH RESPECT TO AJURISDICTION AND VENUE IN THE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR ALL MATTERS ARISING OUT OF THESE TOU OR YOUR USE OF THE SERVICE.
General Legal Provisions
1. Governing Law. These TOU will be governed by applicable United States federal law and the laws of the State of New York, without giving effect to any conflict of laws principles. Notwithstanding the provision in the preceding sentence with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
2. Applicability of Other Laws. You are solely responsible for informing yourself of the applicable laws of the jurisdiction in which you Use the Site and the Service and complying with those laws. If your Use of the Site or the Service would be contrary to the laws of the jurisdiction in which you are located, do not Use the Site or the Service.
3. Severability. If any provision of these TOU is held invalid by a court or other tribunal with jurisdiction over the parties to these TOU, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these TOU will remain in full force and effect.
4. Waiver. The failure of either party to enforce any provision of these TOU will not constitute a waiver of that party's rights to subsequently enforce the provision.
5. No Construction Against Drafter. The rule that an agreement will be construed against the drafter shall not apply to these TOU.
6. Electronic Communication; Notices. You consent to the use of electronic means to provide you with any notices we give you in relation to these TOU. To be effective, any notice given by a party under these TOU must be in writing and delivered (i) if by us, via email, via a posting on the Site or via a message through Your Account, or (ii) if by you to us, via email to legal@openbooks.com. Notices to you will be effective and deemed received on the date transmitted or posted. Notices to us will be effective and deemed received on the date on which we acknowledge receipt.
7. Survival. The provisions of these TOU that concern ownership of intellectual property, grants of rights to us, End-User Payments, privacy, representations and warranties, indemnification, limitation of liability, releases, disputes, and termination, as well as Section 21, will survive termination.
8. Assignment. If we assign the business of the Site or the Service to another entity, we may assign our rights and obligations under these TOU to the new entity without notice to you.
9. Entire Agreement. These TOU constitute the entire agreement between you and us with respect to your use of the Site and do not confer any rights or remedies upon any other person other than you and us.

These Terms of Use were posted on February 17th, 2015.