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As used in this License Agreement (“Agreement”), the terms “we” and “us” refer to StoryPorts, LLC, and its related entities. The terms “you”, “your” and “user” refer to all individuals and/or entities (including all agents, officers, employees, contractors and any other person) using your account to access the StoryPorts website (“Site”) and the services offered by and through it (“Service”).
Subject the terms and conditions of this Agreement, we grant you the limited, non-exclusive, right to use the Service during the term solely for your (and, if applicable, your organization’s) own benefit in accordance with the instructions and for the purposes as set forth on the Site (“License”). This License is only for the number of user accounts identified on the order form (“Order Form”). A single account shall be used by a single person and if more than one person in your organization will be using the Service, a separate account is required for each such person.
The term of this Agreement shall continue for the period set forth in the Order Form as measured from the start date, also identified in the Order Form. The term shall automatically renew for successive periods unless and until either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current period (unless the term is month-to-month, in which case notice may be given any time and termination shall be effective at the end of the then-current monthly period).
Fees and Expenses.
In consideration of the License, you shall pay us the amount set forth in the Order Form (“Fee”), as well as in connection with any additional services to be provided (e.g., activation, premium support, custom themes, etc.) (“Added Services”). If not specified in the Order Form, all such amounts shall be due monthly at the beginning of each month.
You will be asked to provide a payment method upon registering for the Services and you agree to keep your payment information current at all times during the term. By providing us with a payment method, you (i) represent that you are authorized to use the payment method that you provided and that any information you provided is true and accurate; (ii) authorize us to charge you for the Fee and any additional features you may order during the term. Without limiting the foregoing, we will be permitted to apply the Fee to your payment method on a monthly recurring basis (or in such other intervals as set forth in the Order Form) until we receive written notice from you terminating the Services. Unless otherwise provided by law or by a particular offer, all purchases are final and nonrefundable.
You must terminate the Services before each renewal period to avoid being billed for that period. We may change the Fee at any time upon at least thirty (30) days’ advance written notice to you. If you do not agree to the price change, you must terminate the Services before the price change takes effect. If you take part in any trial-period offer, you must cancel the Services prior to the end of the trial period to avoid incurring a charge for the Fee.
You agree to reimburse us for pre-approved travel and expenses incurred in the course of performing the Services at any location other than our main offices. We will invoice you for expenses incurred and, at your request, will provide copies of receipts for which charges are incurred. Invoices shall be paid in full within thirty (30) days from the invoice date.
You will be responsible for all sales and use taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on our net income). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due, plus any actual costs of collection, or the maximum amount allowed by law, whichever is less. We may suspend or cancel the Services at any time if we do not receive payment on time and in full. Suspension or cancelation of the Services could result in a loss of access to and use of your account.
You acknowledge that we own the copyrights in the Service and agree that you will not copy or modify the underlying code without our express written consent. Additionally, all content on the Site and available through the Service, as well as all customizations of the service created for you (excluding only User Content, defined below), including but not limited to designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the “Service Content”), are the proprietary property of us, our users or our licensors with all rights reserved. No Service Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, lent, licensed or sold in any form or by any means, in whole or in part, without our prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload and/or transmit using the Service. Except for your own User Content, you may not upload or republish Service Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Service Content is strictly prohibited. Such license is subject to this Agreement and does not include use of any data mining, robots or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including, without limitation, copyright and trademark laws and applicable communications regulations and statutes.
You are solely responsible for the photos, profiles, accounts, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, link to, publish or display (hereinafter, “post”) on or through the Service (collectively the “User Content”). You may not post, transmit, or share User Content on the Service that you did not create or that you do not have permission to post. You understand and agree that we may, but are not obligated to, delete or remove (without notice) any User Content that, in our sole judgment, violates this Agreement or which might be offensive, illegal, or violate the rights, harm, or threaten the safety of others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store using the Service.
By submitting or otherwise linking to User Content using the Service, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the storage and delivery of the User Content through the Service. By posting User Content to any part of the Service, you automatically grant us, and you represent and warrant that you have the right to grant to us, the right to duplicate, distribute, perform and otherwise use the User Content solely to the extent necessary for delivering it through the Service. All User Content is and shall at all times remain your exclusive property.
Third-Party Websites and Content.
The Service contains (or you may be send through the Service or may be enabled to provide access to) links to other web sites (“Third-Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third-Party Applications, Software or Content”). Such Third-Party Sites and Third-Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Sites accessed through the Site or any Third-Party Applications, Software or Content posted on, available through or installed through the Service, including without limitation the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Sites or the Third-Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third-Party Site or any Third-Party Applications, Software or Content does not imply approval or endorsement thereof by us, nor does it imply approval or endorsement of the Service by such Third-Party Sites. Your use of Third-Party Sites or Third-Party Applications, Software or Content, shall be at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Service or relating to any applications you use, link to or install through the Service.
The Service may enable you to share videos, articles and other Third-Party Applications, Software or Content from, and/or links to, Third-Party Sites through the Service (the “Share Service”). You acknowledge and agree that your use of the Share Services and all links, User Content or Third-Party Applications, Software or Content shared through the Share Service is subject to, and will fully comply with the user conduct rules set forth in Section 9 and the other terms and conditions set forth in this Agreement, as well as the terms and conditions of the user agreements for the Third-Party Sites.
Some content and features of the Service may only be used if you have an account with ExactTarget, Inc. or other e-mail marketing service provider (“Provider”). We are not affiliated with or responsible for such Providers in any way. To the extent you wish to use any additional content or features of the Service that require a Provider account, you are solely responsible for maintaining such account and fully complying with the terms and conditions applicable for use of the Provider’s services. By using such content or features, you expressly grant us the permission to connect with your Provider account, access your account information, and collect and transmit information using that account solely in connection with the Services. The termination, expiration, or any other change to your Provider account shall not impact your obligations herein, including the Fee or any other costs or fees owed.
By using the Service, you represent and warrant that (a) you have the right and power to enter into this Agreement and be bound by the terms hereof; (b) you have consulted with competent local legal counsel of your own choice regarding (i) the Service and the applicability of the Service to your intended use thereof, and (ii) the terms of and advisability of entering into this Agreement; (c) all information you provide to us shall be accurate, complete and not misleading in any material respect, and shall be kept current, accurate, and complete; (d) you shall neither encourage nor enable the infringement of the Service or the Service Content by third parties, nor shall you use the Service for any illegal purpose; and (e) you shall maintain strict controls and safeguards in connection with your use of the Service in order to prevent any unauthorized use or distribution thereof. Your account may be suspended and/or terminated without warning if we believe that you have failed to adhere to the aforementioned.
You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. In addition, you agree to not:
use the Service to harvest or collect email addresses for the purposes of sending unsolicited emails or other unsolicited communications;
use the Service in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Service;
use automated scripts to collect information from or otherwise interact with the Service;
upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
upload, post, transmit, share, store or otherwise make available any content other than that which is created solely by you and/or persons from whom you’ve secured all rights;
impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
upload, post, transmit, share, store or otherwise make publicly available on the Service any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
solicit personal information from anyone under 18 or solicit passwords or personally identifiable information for commercial or unlawful purposes;
upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
intimidate or harass another;
upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
use or attempt to use another’s account, service or system without authorization from us, or create a false identity on the Service; or
upload, post, transmit, share, store or otherwise make available content that, in our sole judgment, is objectionable or which restricts or inhibits any other person from using the Site or Service, or which may expose us or our users to any harm or liability of any type.
Third-Party Disputes. You are solely responsible for your interactions with others through the use of this Service. Notwithstanding the foregoing, we reserve the right, but have no obligation, to intervene where a complaint is raised directly with us concerning your use of the Service.
Where we receive proper written notification of alleged copyright infringement, we will promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act (“DMCA”). If you believe that any material on the Site or transmitted using the Service infringes upon any copyright which you own or control, you may send a written notification of such infringement to email@example.com.
Repeat Infringer. In accordance with the DMCA and other applicable laws, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. We may also in our sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You acknowledge that the Service may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not remove or export from the United States or allow the export or re-export of any part of the Service or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
We are not responsible or liable in any manner for any User Content or Third-Party Applications, Software or Content posted on the Site or transmitted by or through the Service, whether posted or caused by other users, by us, by third parties or by any of the equipment or programming associated with or utilized in the Service. Although we provide rules for user conduct and postings, and we strive to remain in compliance with the terms of service for Third-Party APIs, we do not control and are not responsible for what users post, transmit or share through the Service, for the performance or suitability of any Third-Party Applications, Software or Content, and are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content that may be encountered through the Service or in connection with any User Content or Third-Party Applications, Software or Content. We are not responsible for the conduct, whether online or offline, of any user of the Service.
The Service may be temporarily unavailable from time to time for maintenance or other reasons. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. We are not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any site or server, or combination thereof, including injury or damage to user’s or to any other person’s computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Site and/or the Service (including Service Content). Under no circumstances will we be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Site, Service (including the Service Content), any User Content or third-party applications, software or content posted on or through the Site, Service, or transmitted to Users, or any interactions between users of the Service, whether online or offline.
The Site and Service, including the Service Content, are provided “as is” and we disclaim any and all representations and warranties, whether express or implied, including without limitation implied warranties of title, merchantability, fitness for a particular purpose, and non-infringement. We cannot guarantee and do not promise any specific results from use of the Site and/or the Service. We do not represent or warrant that the Service or any other software, content or materials on the Site are accurate, complete, reliable, current or error-free or that the Site or its servers, or any Service Content are free of viruses or other harmful components. Therefore, you should exercise caution in the use of any such software, content or materials and use industry-recognized software to detect and disinfect viruses. Without limiting the foregoing, you understand and agree that you download or otherwise obtain content, material, data or software from or through the Site and Service at your own discretion and risk and that you will be solely responsible for your use thereof and any damages to your mobile device or computer system, loss of data or other harm of any kind that may result.
We reserve the right to change any and all content, software and other items used or contained in the Site at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
Limitation of Liability.
In no event will we or our directors, employees or agents be liable to you or any third person for any indirect, consequential, exemplary, incidental, special or punitive damages, including for any lost profits or lost data arising from your use of the Site, the Service or any of the Service Content or other materials on, accessed through or downloaded from the Site or Service, even if we are aware or have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability to you for any cause whatsoever, and regardless of the form of the action (whether in contract or tort, including, but not limited to, negligence or otherwise), shall not exceed the total Fee paid by you to us during the six (6) month period immediately preceding the date the claim first arose.
We reserve the right to terminate this Agreement at any time in the event of a material breach by you. You may terminate this Agreement at any time upon written notice to us, provided the terms hereof that would naturally continue following the termination or expiration of this Agreement (e.g., warranties, indemnification, dispute resolution, etc.) shall continue in full force notwithstanding the termination. Termination of this Agreement by you other than for cause shall not relieve you of your obligation to pay the Fee due for the then-current license period and any other costs or fees remaining for the balance of the term, which shall become due and payable in full immediately upon such termination.
Governing Law; Venue and Jurisdiction.
The laws of the State of Ohio, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us or any of our affiliates. With respect to any disputes or claims not subject to arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Hamilton County, Ohio, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts located in Hamilton County, Ohio.
Except as provided in the following sentence, the sole and exclusive forum and remedy for any and all disputes and claims relating in any way to or arising out of this Agreement, the Site and/or the Service shall be final and binding arbitration. To the extent that you have in any manner infringed upon or violated or threatened to infringe upon or violate the our patent, copyright, trademark or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above then the parties acknowledge that arbitration is not an adequate remedy at law and that we may pursue injunctive or other appropriate relief without the necessity of posting a bond. You shall not be entitled to injunctive or other equitable relief of any kind.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration and will be limited solely to the dispute or controversy between the parties. The arbitration will be conducted before a single arbitrator who must be independent of the parties and experienced in intellectual property matters in general and software licenses in particular. In the event the parties are unable to agree upon the arbitrator within fifteen (15) days after the commencement of arbitration, either party is entitled to request the AAA to appoint a neutral arbitrator in accordance with its rules. The arbitration shall be held in person in Cincinnati, Ohio, by telephone, or online. The arbitrator shall not be permitted to award punitive, indirect, exemplary or any other money damages other than a party’s actual money damages sustained as a direct result of the claim. Subject to the foregoing, any award of the arbitrator shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
You agree to indemnify and hold us, our subsidiaries and affiliates, and each of our directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with any User Content, any
Software or Content you post or share on or through the Service, your use of the Service, your conduct in connection with the Service, or any violation of this Agreement or of any law or the rights of any third party.
Any waiver by either party of any breach of this Agreement, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party.
Relationship of Parties.
You and we are independent contractors. You shall not have any right, power or authority to enter into any agreement for us, or incur any obligation or liability on our behalf, or otherwise bind us in any way. This Agreement shall not be interpreted or construed to create an employment relationship, an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party.
We may assign this Agreement and any or all of our rights contained herein. You may not assign this Agreement or any of your rights or responsibilities contained herein. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
Entire Agreement; Modification.
This Agreement constitutes the entire agreement between the parties and supersedes any and all prior understandings or agreements as to the subject matter hereof. We reserve the right to modify this Agreement and any policies affecting the Service, which shall be effective as of the posting of such modifications on the Site and/or through notice via email to you. Your continued use of the Service more than 30 days following the effective date of any modification to this Agreement shall be deemed an acceptance of all such modification(s). It is your responsibility to regularly check the Site to determine if there have been changes to this Agreement and to review such changes.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
You agree that we may add your name and approved logo to our publicly disclosed customer list and the Site.
This Agreement may be executed electronically and/or in counterparts, each of which shall be deemed an original and when taken together shall constitute one and the same instrument. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior understandings or agreements as to the subject matter hereof.