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OkayPublish Services Agreement
Updated February
01, 2007
This BTSharp Account
License Agreement (hereinafter, this "LICENSE") is a legal agreement between you
(either an individual or a single entity) and OkayPublish LLC ("OkayPublish"), for
an OkayPublish Service.
OkayPublish LLC
and/or its affiliates provide OkayPublish Services (as defined below) to you subject
to the following terms and conditions. You must be 18 years of age, or the applicable
age of consent under local law, or older to utilize an OkayPublish Account Service.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND OKAYPUBLISH. CAREFULLY READ ALL TERMS
AND CONDITIONS IN THIS AGREEMENT BEFORE CHECKING THE "ACCEPT" BOX ON THE OKAYPUBLISH
SERVICES ACCOUNT CREATION PAGE. BY CHECKING "ACCEPT" AND COMPLETING YOUR ACCOUNT
CREATION, YOU ARE REPRESENTING THAT (1) YOU ARE AT LEAST 18 YEARS OLD, OR THE APPLICABLE
AGE OF CONSENT UNDER LOCAL LAW, AND (2) HAVE THE AUTHORITY TO BIND YOURSELF OR YOUR
COMPANY TO THIS AGREEMENT. If you do not agree, you may decline this Agreement by
not checking the "ACCEPT" box on the associated Service Account Creation Page and
discontinuing the associated account creation process. If you do not agree to these
terms and conditions, you will not be able to complete the account creation process
or access an OkayPublish Account.
"Agreement" means
these terms and conditions together with all applicable policies, procedures and/or
guidelines, including without limitation any notices that appear on the OkayPublish.com
website (www.OkayPublish.com) from time to time, which are hereby incorporated by
this reference into, and made part of, this Agreement.
This Agreement applies
to all OkayPublish Accounts or Services that you sign up for (each a "Service").
Some Services may have additional or different terms related specifically to such
Service only, and are set forth in Section 7 of this Agreement ("Service Terms").
The Service Terms are in addition to the general terms and conditions in this Agreement.
If there is any conflict between this Agreement and the Service Terms, the Service
Terms will govern with respect to that particular Service. Some terms contained
in this Agreement may not be applicable to a particular Service, in which case,
such inapplicable terms will not apply to you with respect to that particular Service.
"OkayPublish" means
collectively and individually OkayPublish LLC and/or its affiliates, as the context
requires. Either OkayPublish LLC or one of its affiliates will be the entity providing
a specific Service. The applicable entity will be identified on the product detail
page for each Service.
"OkayPublish Services"
is a set of services which enables the creation of applications that perform various
functions and use or incorporate OkayPublish’s e-commerce or other externalized
software or data ("Applications"). The term "OkayPublish Services" includes any
data, images, text, and content, APIs, tools or other information or materials provided
by OkayPublish through OkayPublish Services.
1. PARTICIPATION
You may use the
OkayPublish Account received via OkayPublish Services in accordance with the terms
and conditions described in this Agreement.
A. General
1) You may write
an Application that utilizes the Content Provider Identification Number issued to
you upon creation of a BTSharp Account.
2) You may make
calls at any time that the OkayPublish Services are available, provided that you
either: (i) do not exceed 1 call per second per IP address, or send files greater
than 40KB; or (ii) do not exceed the limits set forth in the Service Terms for a
particular Service. If you build and release an Application, the stated limitations
apply to each installed copy of the Application.
3) You are responsible
for complying, and you represent, warrant and covenant that you will at all times
comply, with all applicable laws or regulations of any applicable jurisdiction.
You may not, and represent, warrant and covenant that you will not, use OkayPublish
Services or your Application: (i) in a manner that infringes, violates or misappropriates
any third party’s intellectual property rights; (ii) to engage in spamming or other
impermissible advertising or marketing activities, or in any manner that otherwise
violates anti-spamming laws and regulations; (iii) in a way that is otherwise illegal
or promotes illegal activities, including without limitation in any manner that
might be libelous or defamatory or otherwise malicious or harmful to any person
or entity, or discriminatory based on race, sex, religion, nationality, disability,
sexual orientation or age.
4) You may not interfere
or attempt to interfere in any manner with the functionality or proper working of
OkayPublish Services.
5) You agree to
provide such additional information and/or other materials related to your Application
as reasonably requested by us or our affiliates to verify your compliance with this
Agreement. If your Application is available as an online solution, you acknowledge
and agree that we (and/or our affiliates) may crawl or otherwise monitor your Application
for the purpose of verifying your compliance with this Agreement, and that you will
not seek to block or otherwise interfere with such crawling or monitoring (and that
we and/or our affiliates may use technical means to overcome any methods used on
your Application to block or interfere with such crawling or monitoring). If your
Application is a desktop solution, you agree to furnish a copy of your Application
upon request for the purpose of verifying your compliance with this Agreement.
6) You acknowledge
and agree that you will not display or reference on or within your Application,
any trademark or logo of any third party seller on the OkayPublish Website.
7) If your Application
is determined (for any reason or no reason at all, in our sole discretion) to be
unsuitable for OkayPublish Services, we may suspend your access to OkayPublish Services
or terminate this Agreement at any time, without notice.
B. Display
1) You may not remove,
obscure, or alter any notice of patent, copyright, trademark, logo or other proprietary
right appearing on or contained within OkayPublish Services.
If you are unsure
of whether what you wish to do is permitted under this Agreement, please contact
account@OkayPublish.com.
2. SERVICE FEES
We reserve the right
to charge a fee for any Service at any time in our sole discretion. If we do charge
a fee for a Service you do not have any obligation to continue such Service. However,
if you do: (i) we reserve the right to specify the manner in which you will be charged:
and (ii) any and all fees payable by you pursuant to this Agreement are expressed
exclusive of all taxes and duties, including Value Added Tax ("VAT") or any similar
applicable sales tax. In addition to such fees payable, you will pay any sales,
use, value-added or import taxes, customs duties or similar taxes that may be assessed
by any state and/or jurisdiction (collectively, "Taxes") that OkayPublish is legally
required to charge on the applicable fees under this Agreement. If requested to
do so by OkayPublish, or as otherwise required by applicable law, you will supply
your VAT identification number to OkayPublish. We may also change the fees or fee
structure for any Service, as reflected in the applicable Service detail page, and
you will not have any obligation to continue such Service.
All amounts payable
by you under this Agreement will be made without set-off or counterclaim, and without
deduction or withholding for, or on account of, any present or future Taxes. If
any such deduction or withholding is so required, you will: (i) pay such additional
amounts as may be necessary in order that the net amount that OkayPublish receives,
after such deduction or withholding (including deduction or withholding with respect
to additional amounts) will equal the amount that OkayPublish would have received
if no such deduction or withholding had been required; (ii) make such deduction
or withholding; and (iii) pay the full amount deducted or withheld to the relevant
taxation authority in accordance with applicable Law and forthwith after payment
furnish OkayPublish with a receipt evidencing such payment.
If we charge for
a Service, the fees and any additional payment terms will be stated in the specific
Service detail page for such Service.
3. OWNERSHIP
You retain all intellectual
property rights you may have in the Applications you create which are based on or
utilize OkayPublish Services (subject to OkayPublish's underlying rights in OkayPublish
Services). You hereby release and covenant not to sue OkayPublish or its affiliates,
or any of their licensees, assigns or successors, for any and all damages, liabilities,
causes of action, judgments, and claims: (i) pertaining to your Applications, or
any intellectual property you develop that is based on, uses, or relates to OkayPublish
Services; and/or (ii) which otherwise may arise in connection with your use of,
reliance on, or reference to OkayPublish Services. OkayPublish, our affiliates and
our applicable licensors retain all intellectual property rights (including all
worldwide patent, trademark, copyright, and other proprietary rights) in and to
OkayPublish Services, and any derivative works created by or for OkayPublish pursuant
to any Beta Test program outlined in Section 6 below. ALL RIGHTS NOT EXPRESSLY GRANTED
IN THIS AGREEMENT ARE HEREBY RESERVED BY OKAYPUBLISH, ITS AFFILIATES AND THEIR RESPECTIVE
LICENSORS.
We disclaim all
liability, and you will be solely responsible for, the development, operation, and
maintenance of your Application and for all materials that appear on or within your
Application. For example, you will be solely responsible for:
the technical operation
of your Application and all related equipment
ensuring that materials
posted on or within your Application do not violate or infringe upon the rights
of any third party (including, for example, copyrights, trademarks, privacy, or
other personal or proprietary rights)
any of your users'
or customers' claims relating to your Application and/or OkayPublish Services.
4. IDENTIFYING YOURSELF
AS A USER OF OKAYPUBLISH SERVICES AND USE OF OKAYPUBLISH TRADEMARKS
You may generally
publicize your use of OkayPublish Services, however you may not issue any press
release with respect to OkayPublish Services or this Agreement without our prior
written consent. We may make available to you certain small graphic images, trademarks,
trade names, service marks or logos owned or licensed by OkayPublish or its affiliates
("Marks") that you may use in conjunction with your Application indicating that
your Application is using OkayPublish Services. You may not use the Marks in any
manner that disparages OkayPublish, its affiliates or its licensors, or that otherwise
dilutes the Mark. Other than your limited right to use the Marks as provided in
this Agreement, OkayPublish, its affiliates and their licensors retain all right,
title and interest in and to the Marks. You will not at any time now or in the future
challenge or assist others to challenge the validity of the Marks, or attempt to
register confusingly similar trademarks, trade names, service marks or logos. You
agree to follow our Trademark Guidelines as those guidelines may change from time
to time. You must immediately discontinue use of any Mark as specified by us at
any time in writing. We may modify any Marks provided to you at any time, and upon
notice, you will use only the modified Marks and not the old Marks. Other than as
specified in this Agreement, you may not use any trademark, service mark, trade
name or other business identifier of OkayPublish or its affiliates or third parties
that sell products on the OkayPublish Website unless you obtain OkayPublish's and
any applicable third party's prior written consent. The foregoing prohibition includes
the use of "OkayPublish," any other trademark of OkayPublish or its affiliates,
or variations or misspellings of any of them, in the name of an Application or in
a URL to the left of the top-level domain name (e.g., ".com", ".net", ".uk", etc.)
-- for example, a URL such as "OkayPublish.mydomain.com", "amaozn.com" or "OkayPublishauctions.net"
are expressly prohibited. In addition, you may not in any manner misrepresent or
embellish the relationship between us and you, or state or imply any relationship
or affiliation between us and you or any other person or entity except as expressly
permitted by this Agreement (including by statement or implying that OkayPublish,
its affiliates or any third party that sells any products or services on the OkayPublish
Website supports, sponsors, endorses, or contributes money to you or your business
endeavors).
5. ACCOUNT IDENTIFIERS
Unless otherwise stated in specific Service Terms, you may only create one account
per email address. OkayPublish Services accounts are associated with one or more
Content Provider Identification Numbers, which are used to access the service. Examples
include an OkayPublish-issued BTSharp Content Provider Identification Number. When
you complete the account creation process, you will be issued unique Account Identifier.
Account
Identifiers (i) identify your account and (ii) allow you to use OkayPublish Services.
The Account Number is immutable and will always uniquely identify your OkayPublish
account. Content Provider Identification Numbers are for your personal use only
and you may not sell, transfer, sublicense or otherwise disclose your Content Provider
Identification Number to any other party. YOU ARE RESPONSIBLE FOR MAINTAINING THE
SECRECY OF YOUR CONTENT PROVIDER IDENTIFICATION NUMBER. You are fully responsible
for all activities that occur under your Account Identifiers. Therefore, you should
contact OkayPublish immediately if you believe a third party may be using your Content
Provider Identification Number, or if your Content Provider Identification Number
is otherwise lost or stolen. You are responsible for maintaining up-to-date and
accurate information (including without limitation valid contact information) with
respect to Your OkayPublish Services account. OkayPublish and its affiliates are
not responsible for any unauthorized access to, alteration of, or the deletion,
destruction, damage, loss or failure to store any Content or other data which you
submit in connection with your account.
6. BETA TESTING
V. BETA TESTING.
From time to time
OkayPublish may conduct open beta tests (each a "Beta Test") of new versions of
OkayPublish Services (each a "Beta Test Product"). If you choose to register for
a Beta Test, your participation is subject to the following additional terms:
You understand that
the overall design of the Beta Test Product could change throughout the course of
the Beta Test and that OkayPublish reserves the right to change or withdraw the
Beta Test Product, discontinue the Beta Test, revoke your license to the Beta Test,
or release the Beta Test Product as a final version at any time in its sole discretion.
You agree to record
and report all problems, issues, ideas, feedback and suggestions for enhancements
to the Beta Test Product ("Feedback") to OkayPublish on a timely basis to the email
address that will be provided to you along with the beta testing materials, and
during the Beta Test period, you will not speak to the press regarding the Beta
Test or the Beta Test Product, without our prior written consent.
You hereby assign
all right title and interest in and to your Feedback to OkayPublish and/or its affiliates,
as applicable, and acknowledge that OkayPublish and/or its affiliates have the unrestricted
right to use and exploit such Feedback in any manner, with or without attribution,
and without compensation or any duty to account to you for such use.
You agree that any
Applications you build and release based on the Beta Test Product during the Beta
Test will be labeled as "beta".
7. Specific Service
Terms
A. OkayPublish BTSharp
Account (BTSharp)
The following terms
in this Section 7b are specific to BTSharp only:
1) You may use BTSharp
to transfer data owned or lawfully obtained by you (“Your BTSharp Content”). You
acknowledge that neither OkayPublish nor its affiliates are responsible in any manner,
and you are solely responsible, for Your BTSharp Content. While we may track information
regarding your usage of BTSharp, we will not disclose, sell or license Your S3 Content.
2) The limitation
of 1 call/per second/per IP address set forth in Section 1.A.2 above is not applicable
to Your use of BTSharp.
3) In consideration
of your use of BTSharp, you agree to pay the amounts set forth on the BTSharp Account
Sign Up Confirmation Page.
4) You represent
and warrant that: (i) Your BTSharp Content does not infringe or violate any rights
of any other person or entity; (ii) Your BTSharp Content is not libelous, defamatory
or otherwise malicious or harmful to any person or entity; (iii) you will not use
BTSharp to engage in spamming or other impermissible advertising or marketing activities;
(iv) you will not use BTSharp in any way that is otherwise illegal or promotes illegal
activities, including without limitation in any manner that might be discriminatory
based on race, sex, religion, nationality, disability, sexual orientation or age.
8. DISCLAIMER OF
WARRANTIES AND LIMITATION OF LIABILITY
OKAYPUBLISH SERVICES
ARE PROVIDED BY OKAYPUBLISH ON AN "AS IS" AND "AS AVAILABLE" BASIS. OKAYPUBLISH
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE WITH RESPECT TO OKAYPUBLISH SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND
AGREE THAT YOUR USE OF OKAYPUBLISH SERVICES IS AT YOUR SOLE RISK. EXCEPT TO THE
EXTENT PROHIBITED BY APPLICABLE LAW, OKAYPUBLISH DISCLAIMS ALL WARRANTIES, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY IMPLIED
WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. OKAYPUBLISH DOES
NOT WARRANT THAT OKAYPUBLISH SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS,
OR THAT THEY WILL BE ACCESSIBLE ON A PERMANENT BASIS OR WITHOUT INTERRUPTION OR
THAT THE DATA YOU STORE IN ANY SERVICE ACCOUNT WILL NOT BE LOST OR DAMAGED.
OKAYPUBLISH WILL
NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF, OR INABILITY
TO USE, OKAYPUBLISH SERVICES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL,
PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST
DATA, BUSINESS OR ANTICIPATED PROFITS. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS
ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, AND SO
SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO
YOU.
THIS LIMITATION
OF LIABILITY DOES NOT APPLY TO LIMIT OKAYPUBLISH'S LIABILITY FOR DEATH OR PERSONAL
INJURY TO THE EXTENT ONLY THAT IT ARISES AS A RESULT OF THE NEGLIGENCE OF OKAYPUBLISH
OR OF ITS EMPLOYEES, AGENTS OR AUTHORIZED REPRESENTATIVES.
9. INDEMNIFICATION.
You agree to indemnify,
and hold harmless OkayPublish and its affiliates, and each of their respective employees,
directors and representatives, from and against any and all claims, costs, losses,
damages, liabilities, judgments and expenses (including reasonable fees of attorneys
and other professionals), arising out of or in connection with any claim, action
or proceeding (any and all of which are "Claims") which in any way arise out of
or are related to: (i) your use of the SOFTWARE; or (ii) your Application or your
Content, including but not limited to any infringement of any third-party rights;
and (iii) your violation of any term or condition of this LICENSE. At OkayPublish's
option, you will assume control of the defense and settlement of any Claim subject
to indemnification by you (provided that, in such event, OkayPublish may at any
time thereafter elect to take over control of the defense and settlement of any
such Claim, and in any event, you may not settle any such Claim without OkayPublish's
prior written consent).
10. APPLICABLE LAW
AND ARBITRATION
By using OkayPublish
Services, you agree that the laws of the state of Michigan, without regard to principles
of conflict of laws, will govern this Agreement and any dispute of any sort that
might arise between you and OkayPublish. Any dispute relating in any way to your
use of OkayPublish Services will be submitted to confidential arbitration in Seattle,
Michigan, except that in any case, we may seek injunctive or other appropriate relief
in any state, federal, or national court of competent jurisdiction for any actual
or alleged infringement of OkayPublish's or any third party's intellectual property
and/or proprietary rights (and you hereby irrevocably consent to nonexclusive jurisdiction
and venue of the state and federal courts of Michigan State with respect to any
such matters). Arbitration under this Agreement will be conducted under the rules
then prevailing of the American Arbitration Association. The arbitrator's award
will be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, no arbitration under this Agreement
will be joined to an arbitration involving any other party subject to this Agreement,
whether through class arbitration proceedings or otherwise. The parties expressly
exclude application of the United Nations Convention for the International Sale
of Goods to this Agreement.
11. TERMINATION
You may terminate this Agreement by ceasing to use OkayPublish Services. We reserve
the right to terminate this Agreement (and/or your account) or your access to any
individual or all Services provided under this Agreement, and to delete your Content
or Applications: (i) if you breach any term or condition in this Agreement and you
do not cure such breach to our satisfaction within sixty (60) days after we give
you notice of the breach; or (ii) immediately if we are compelled by court order
or otherwise discover any use of OkayPublish Services by you that in our reasonable
discretion presents a security risk or that might be the subject of a legal claim
or dispute. We further reserve the right to discontinue OkayPublish Services, any
Services, or any portion or feature thereof for any reason and at any time in our
sole discretion. Upon any termination or notice of any discontinuance, you must
immediately stop your use of the applicable Service(s).
Sections 3, 5, 8 - 12, any definitions
that are necessary to give effect to the foregoing provisions, and any payment obligations
will survive any termination of this Agreement and will continue to bind you and
us in accordance with their terms.
12. GENERAL PROVISIONS
We may modify any
of the terms and conditions contained in this Agreement, at any time and in our
sole discretion, by posting a change notice or a new agreement on the OkayPublish
Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO STOP
USING OKAYPUBLISH SERVICES OR THE APPLICABLE SERVICE(S). YOUR CONTINUED USE OF OKAYPUBLISH
SERVICES OR THE APPLICABLE SERVICE(S) FOLLOWING OUR POSTING OF A CHANGE NOTICE OR
NEW AGREEMENT ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
No modification of this Agreement other than as provided above will be binding on
OkayPublish unless set forth in a writing signed by both parties. If any portion
of this Agreement is held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining portions of this Agreement will remain in full force
and effect and, upon OkayPublish's request, the court will construe any invalid
or unenforceable portions in a manner that most closely reflects the effect and
intent of the original language. If such construction is not possible, the provision
will be severed from this Agreement and the rest of the Agreement shall remain in
full force and effect. The failure by OkayPublish to enforce any provision of this
Agreement shall in no way be construed to be a present or future waiver of such
provision, nor in any way affect the right of OkayPublish to enforce such provision
thereafter. This Agreement will be binding upon, and inure to the benefit of the
parties and their respective successors and assigns. This Agreement, and policies
and guidelines posted on the OkayPublish Website, constitutes the entire agreement
between you and OkayPublish regarding the subject matter hereof and supersedes any
and all prior or contemporaneous representation, understanding, agreement or communication
between you and OkayPublish, whether written or oral, regarding such subject matter.
Each of OkayPublish's affiliates are express and intended third party beneficiaries
of this Agreement and my enforce any of its terms and exercise any of the rights
to the same extent as OkayPublish. Nothing in this Agreement is intended to or does
create any type of joint venture, partnership or employer/employee relationship
between you and OkayPublish or its affiliates. This Agreement is in the English
language only, which language shall be controlling in all respects, and all versions
hereof in any other language shall not be binding on the parties hereto. All communications
and notices to be made or given pursuant to this Agreement shall be in the English
language.
13. EXPORT CONTROLS
You agree to comply
with all applicable export and re-export control laws and regulations, including
the Export Administration Regulations, the International Traffic in Arms Regulations,
and country-specific economic sanctions programs implemented by the Office of Foreign
Assets Control in connection with your use of any Service. Specifically, you acknowledge
and understand that Content that you upload, store, manage, or transfer using OkayPublish
Services, may be subject to U.S. export control laws and regulations. You hereby
certify that you will not -- directly or indirectly -- sell, export, re-export,
transfer, divert, or otherwise dispose of any Content to any country (or national
thereof) without obtaining any required prior authorizations from the appropriate
government authorities.
You may not use
any Service (i) to transfer any item to parties who are in U.S. sanctioned countries
or identified on restricted government lists, including the Denied Persons List,
the List of Specially Designated Nationals, or the Entity List, or (ii) for any
military, nuclear, chemical, or biological weaponry use.
14. COMMUNICATIONS
For any questions
regarding this Agreement, you can contact us at support@btsharp.com.
OUR ADDRESS:
OkayPublish LLC
189 E. Big Beaver
Rd
Suite 203
Troy, MI 48083
(c) 2007 OkayPublish
LLC and/or its affiliates
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