LAST REVISED: 30 April 2014
"Client Agreement" means a duly executed agreement between NetGalley LLC and a Client under which NetGalley LLC agrees to provide services in connection with a Client's digital publishing activities including storage, editorial review, and circulation of ARC copies, Galleys, Ebooks, marketing material, and other Content.
"Authorized User" means an employee, agent, affiliate, or subcontractor of Client who has been duly authorized by Client, by the authorization mechanisms that are made available by NetGalley LLC via the Web Site, to access Restricted Content in Secure Areas.
"Client" means either: 1) an individual or entity that has entered into a Client Agreement with NetGalley LLC; or 2) an individual or entity that is authorized to submit Content and designate Authorized Users pursuant to Section 6 below. "Client Content" means the Content made available by Client and submitted to NetGalley LLC pursuant to a Client Agreement or to Section 6 below.
"Content" means Galleys, EBooks, marketing material, related catalog and text information, and any and all other text, pictures, sounds, video, or other data, excluding Forum Content, in any format made available via the Website.
"EBook" means a publication for distribution for reading purposes via an electronic format.
"Forum" means a social-networking forum, blogging forum, chat area, bulletin board, email function or feedback section offered as a party of the Website where you may contribute Forum Content for public and/or semi-public viewing and/or consumption.
"Forum Content" means any text, data, photographs, software, music, sound, graphics, video, message tags and/or other material or Content that you or other users contribute to a Forum.
"Galley" means any single version of a publication, including related metadata, distributed for media or buyer review, comment, editorial review, promotional, or other similar purposes including: unbound galley, bound galley, uncorrected proof, review copy, desk copy, preview copy, digital preview, digital galley, or finished book adapted for use and display in connection with the Website. The term, "Galley" may include EBooks and post-publication content.
"Public Areas" means those portions of the Website that NetGalley LLC makes available to the public without restriction and that may be accessed without the use of a password.
"Restricted Content" means the Client Content that has been made available to Clients and Authorized Users by accessing a Secure Area of the Website.
"Secure Area" means those portions of the Website that NetGalley LLC makes available solely to Clients and their Authorized Users and for which access is controlled by usernames and passwords.
"Submit" (whether or not capitalized) means to transmit, post, upload, distribute, display, publicly perform, copy, and/or make derivative works.
"Unrestricted Content" means Content, that is not Restricted Content, made available on public portions of the Website.
"Use" means (whether or not capitalized) to copy, distribute, publicly perform, publicly display, make derivative works, edit or otherwise access or use.
4. Unrestricted and Restricted Content
Unless you are a Client with copyright ownership or the appropriate licenses over its own Content for purposes of the foregoing, you will not: (a) sell, sublicense, resell, or otherwise transfer your right to use the Content; (b) create or attempt to create derivative works from the Content except as expressly permitted herein; (c) remove any copyright, trademark or other proprietary notices from any Content; (d) remove or attempt to remove any DRM from the Content.
This Website is made available solely for adults eighteen (18) years of age or older. If you are under eighteen (18), please exit this Website immediately.
6. Authorized Users
6.2. Confidentiality of Restricted Content. You will employ best efforts to safeguard the Restricted Content and protect it from unauthorized use, exercising at least a reasonable degree of care. You will immediately notify NetGalley LLC of any unauthorized use of the Restricted Content. Your obligations to keep confidential the Restricted Content will survive the termination or expiration of the Agreement.
6.4. Limited Liability Regarding Restricted Content. The Client (and not NetGalley LLC) provides the Restricted Content that can be accessed through the Website. NetGalley LLC does not guarantee the accuracy, completeness, usefulness, integrity, or quality of such Restricted Content. You understand and agree that by accessing Secure Areas and/or using Restricted Content, you may be exposed to Restricted Content that is offensive, indecent, or objectionable. Under no circumstances will NetGalley LLC be liable in any way for any Restricted Content, including any errors or omissions in any Restricted Content or any loss or damage of any kind incurred as a result of the use of any Restricted Content submitted via this Website.
6.5. Restricted Content Submissions. If you are a Client or an Authorized User, the Website may provide means for you to submit material through Secure Areas of the Website. You will not submit material protected by copyright, trademark, trade secret, patent, or other proprietary right without the express permission of the copyright holder. You will be solely liable for any damage resulting from any such improper submissions. To the extent you submit and/or edit Restricted Content through a Secure Area, you warrant that you have the right to do so and grant to NetGalley LLC a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use such Restricted Content in connection with providing services under an applicable Client Agreement. You also grant NetGalley LLC a worldwide, royalty-free, perpetual, irrevocable, nonexclusive, right to sublicense the foregoing rights in connection with providing services under an applicable Client Agreement. You will not submit material that: (i) constitutes or contains unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of unauthorized solicitation; (ii) constitutes or 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; (iii) interferes with or disrupts the Website, related services, or servers or networks connected thereto or disobeys any requirements, procedures, policies, or regulations of networks connected to this Website or related services; (iv) violates any applicable local, state, national, or international law or any regulations having the force of law; or (v) impersonates any person or entity or falsely states or otherwise misrepresents your affiliation with a person or entity;
7. Forums and Public Communication
NetGalley LLC may offer Forums in Public Areas as a way to facilitate your networking and socializing with others within the publishing field or sharing similar interests. You agree that all Forum Content is the sole responsibility of the individual or entity from whom such Forum Content originated. This means that you (and not NetGalley LLC) are entirely responsible for all Forum Content that you submit via the Forum or elsewhere on the Website. NetGalley LLC does not control the Forum Content and, as such, does not guarantee the accuracy, completeness, usefulness, integrity, or quality of such Forum Content. You understand and agree that by using the Forums or other places on this Website, you may be exposed to Forum Content that is offensive, indecent, or objectionable. Under no circumstances will NetGalley LLC be liable in any way for any Forum Content, including any errors or omissions in any Forum Content or any loss or damage of any kind incurred as a result of the use of any Forum Content submitted via this Website.
8. Your Participation in the Forums and General Use of this Website
You agree that you will not use a Forum or this Website to submit or otherwise make available Forum Content or any other content, or demonstrate any behavior that:
Is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, racially or otherwise hateful, or otherwise objectionable;
Impersonates any person or entity or falsely states or otherwise misrepresents your affiliation with a person or entity;
Conflicts with any obligations you have under law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as party of employment relationships or under non-disclosure agreements);
Infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any third party;
Constitutes or contains unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of unauthorized solicitation.
Constitutes or 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;
Interferes with or disrupts the Website, related services, or servers or networks connected thereto or disobeys any requirements, procedures, policies, or regulations of networks connected to this Website or related services.
Violates any applicable local, state, national, or international law or any regulations having the force of law; or
Is used to stalk or otherwise harass another.
9. Forum Content
NetGalley LLC asserts no ownership rights over the Forum Content you post, transmit, or otherwise make available for inclusion on the Forums or elsewhere on the Website. With respect to such Forum Content, however, you grant us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use such Forum Content on the Forums, anywhere on the Website, or elsewhere and in any media for the purpose of providing, promoting, or advertising the Website and related services.
10. Claims of Infringement
NetGalley LLC respects the intellectual property of others and requires that you do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, NetGalley LLC will respond expeditiously to notices of alleged copyright infringement that are duly reported to its Designated Copyright Agent identified in the notice below. NetGalley LLC will disable and/or terminate the accounts of users who are repeat infringers. If you believe that your Content has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide NetGalley LLC's Copyright Agent the following information:
DMCA Notice of Alleged Infringement ("Notice")
1. Identify the copyrighted work that you claim has been infringed, or if multiple works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the Website.
3. Provide your mailing address, telephone number and, if available, email address.
4.Include both of the following statements in the body of the Notice:
"I hereby state that I have a good-faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to NetGalley LLC' Designated Copyright Agent:
NetGalley LLC, Inc. 44 Merrimac Street Newburyport, MA 01950
While NetGalley LLC considers all such notices seriously, you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that Content or activity is infringing. For example, one decision ordered a company that sent infringement notification seeking removal of online materials that were protected by copyright's fair use doctrine to pay such costs and attorneys' fees the company agreed to settle the matter at over $100,000.For more information, please see http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/. Accordingly, if you are uncertain whether material infringes your copyrights (including whether use of copyrighted material may constitute fair use) you may wish to seek the advice of an attorney.
11. General Legal
11.1. Disclaimer. Your use and browsing of this Website are at your own risk. Except as otherwise provided above, everything on this Website is provided "AS IS" without warranty of any kind, either express or implied, including the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. NetGalley LLC makes no warranties that the Website will be error-free or uninterrupted, that defects will be corrected, or that this Website, or its server are or will be free of viruses or other harmful components. NetGalley LLC makes no warranties or representations regarding the use or results of the use of the Content on this Website. You understand and agree that applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
11.2. Indemnification. You will defend, indemnify, and hold us harmless from: (i) your use of and access of the Website; (ii) your violation of any of these Terms; (iii) your violation of any third-party right including any copyright, trademark, trade secret, or privacy right related to the Content or use of the Website. This defense and indemnification obligation will survive these Terms and your use of the Website.
11.3. Limitation of Liability. IN NO EVENT WILL NetGalley LLC BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO, OR USE OF, THIS WEBSITE OR THE CONTENT THEREON, WHETHER IN A CONTRACT ACTION OR BASED ON NEGLIGENCE, OR OTHER TORT ACTION, OR ANY OTHER CLAIM WHATSOEVER, EVEN IF NetGalley LLC OR ONE OF ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 NetGalley LLC' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU, IF ANY, IN ACCESSING THIS WEBSITE.
11.6. Assignment. Subject to any terms to the contrary in the Client Agreement, NetGalley LLC may assign its rights and delegate its duties under this Agreement in their entirety in connection with a merger, reorganization, or sale of all, or substantially all, of its assets relating to this Agreement.
The Terms may be terminated by NetGalley LLC at any time without notice. In the event of termination, you are no longer authorized to access the Website and all limitations on NetGalley LLC's liability regarding your use of the Website and/or the Content will survive.
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