PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THIS WEBSITE. This is an agreement between you and Booktrack Holdings Limited (together with its affiliates, "Booktrack", "we", "our" or "us"). If you do not agree to any of these Terms of Service, the Booktrack privacy notice (http://www.booktrack.com/privacy), or the Community Guidelines (http://www.booktrack.com/guidelines), you may not use this website or the Booktrack platform as described in these terms
1. ACCEPTANCE OF TERMS
Booktrack provides an online and offline hosted platform, offered at the Website (defined below) or mobile applications and other applications offered by Booktrack (together, the "Booktrack Platform" or "Platform") that gives users the ability to (a) access, create, edit, share, or sell material in respect of Booktrack Products (as defined in Section 7), (b) shop for, download, browse, and/or use Booktrack Products, or (c) to interact as a community via such Platform. By creating an account on the Booktrack Platform, using and/or visiting the Booktrack® website (collectively, including all content available through the Booktrack domain name booktrack.com and any subdomains thereof or other domains related thereto, and/or any additional or successor websites, the "Booktrack Website" or the "Website", or mobile applications and other applications accessing Booktrack) or Booktrack Platform, you signify your agreement to (1) these terms and conditions (the "Terms of Service"), (2) Booktrack's privacy notice, found at http://www.booktrack.com/privacy and incorporated here by reference, and (3) Booktrack's Community Guidelines, found at http://www.booktrack.com/guidelines and also incorporated here by reference (with such incorporated references, the "Agreement").
Although Booktrack may attempt to notify you when major changes are made to the Agreement, you should periodically review the most up-to-date version (http://www.booktrack.com/terms, http://www.booktrack.com/privacy, and http://www.booktrack.com/guidelines). Booktrack may, in its sole discretion, modify or revise the Agreement at any time, and your continued use of the Website, the Platform and/or your Booktrack account, as applicable, following such changes signifies your agreement to be bound by such modifications or revisions. Nothing in the Agreement shall be deemed to confer any third-party rights or benefits.
2. OTHER TERMS
Other Booktrack services may be governed by additional terms and conditions, including the following:
3. WEBSITE AND PLATFORM
This Agreement applies to all users of the Booktrack Website and Booktrack Platform, including users who are also contributors of text content, information, and other materials or services on the Website.
Provided that the licensor of any Media (as defined hereinafter) on the Website or Platform is not in breach of any of their obligations, warranties or undertakings contained in any agreement signed between the licensor and Booktrack, Booktrack shall, in such situations and in such manner as Booktrack acting at its sole discretion deems appropriate, credit the licensor on Booktrack's website in respect of any Media accepted by Booktrack, provided however, that nothing in these terms of service requires Booktrack to provide any such credit.
The Booktrack Website may contain links to third party websites that are not owned or controlled by Booktrack. Booktrack has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Booktrack will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly release Booktrack from any and all claims and liability arising from your use of any third-party website.
You may never use another's account without permission. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Booktrack immediately of any breach of security or unauthorized use of your account.
Although Booktrack will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Booktrack or others due to such unauthorized use.
You will not create an account if you are under 13 years of age. As well, if you change your default account settings to permit viewing of adult content, or make purchases from the Platform, you affirm that you are either more than the age of majority in your jurisdiction of residence, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with this Agreement.
You are free to create more than one account. However, if you create or use multiple accounts for any malicious activity or for purposes of voting or rating), we may immediately terminate any or all of your accounts.
We may terminate any account without notice.
You may delete your account at any time by editing your profile [or using the unsubscribe option]. We may require you to confirm your identity before we delete your account. You understand that while we will disable access to your account, we may retain archival, backup or other copies of the information you submitted when you created your account or other information you have submitted to us or through the Website. Use of your Booktrack Products following deletion of your account is covered below.
5. GENERAL USE OF THE WEBSITE
Booktrack hereby grants you permission to access and use the Website and Platform as set forth in these Terms of Service, provided that:
You agree not to distribute in any medium any part of the Website, including but not limited to User Submissions (as defined below), without Booktrack's prior written authorization.
You agree not to alter or modify any part of the Website, other than by providing User Submissions where permitted.
You agree not to use the Website for any commercial use except as may be offered by Booktrack ("Monetization Services") or expressly permitted by Booktrack.
Except as Booktrack may expressly permit, you agree not to use or launch any automated system, including without limitation, "robots," "spiders," or "scrapers," that accesses the Website in a manner that sends more request messages to the Booktrack servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, Booktrack grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Booktrack reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website (e.g. comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Submissions.
In your use of the Website and/or the Platform, you will otherwise comply with the terms and conditions of these Terms of Service, Booktrack Community Guidelines, and all applicable local, national, and international laws and regulations.
Booktrack reserves the right to discontinue any aspect of the Booktrack Website and Booktrack Platform at any time.
You agree that Booktrack has the right, but not the obligation, to monitor any form of user activity associated with the Website, the Platform and any additional services we may make available to you. We may investigate any reported violation of our Website-related or Platform-related agreements and policies, and any user or other third party complaints relating thereto. We may take any action that we deem appropriate in connection with any such investigation (including without limitation issuing warnings, suspending or terminating accounts, denying Website access and/or removing any materials posted on the Website). Booktrack may also investigate, in our sole discretion, the use of any credit card by a user in connection with the Website, and take such action as we deem necessary or appropriate, including without limitation contacting the owner or user of such card or canceling purchase orders placed by such owner or user.
6. USE OF CONTENT ON THE SITE
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of content on the Booktrack Website.
Each literary work available as a digital book on the Platform and Website that is not in the public domain ("eBook Content") is the exclusive property of the author, publisher or his/her or its licensors and is protected by copyright and other intellectual property laws. The purchase, download of, and access to any eBook Content is available only to account holders, only as incorporated into a Booktrack Product, and is intended only for such account holder's personal and non-commercial use. Any other use of eBook Content is strictly prohibited. Unless otherwise permitted by the author or publisher, you may not modify, transmit, publish, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, or in any way exploit, any of the content of any eBook Content, in whole or in part. By downloading or otherwise accessing eBook Content as incorporated into a Booktrack Product from the Platform, you expressly acknowledge and agree to these terms.
The content on the Booktrack Website, including the Booktrack Platform and all Booktrack Products, all eBook Content and all text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like, but excluding all User Submissions ("Content") and the trademarks, service marks and logos contained therein, are owned by or licensed to Booktrack, subject to copyright and other intellectual property rights under the law. Content on the Website is provided to you AS-IS for your information and personal use only and may not be downloaded, copied, modified, produced, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, translated, published, performed or otherwise exploited for any other purposes whatsoever except using the express functionality of the Website/Platform or with the prior written consent of the respective owners. Booktrack reserves all rights not expressly retained or granted in and to the Website and the Content.
You may access User Submissions solely for your information and personal use, and solely as intended through the normal functionality of the Booktrack Website.
You may access Content, User Submissions and other content only as permitted under these Terms of Service. You agree not to use, copy, or distribute any of the Content other than expressly permitted herein, including any use, copying, or distribution of Content of third parties obtained through the Website, for any commercial purposes. You agree not to circumvent, disable or otherwise interfere with security-related features of the Booktrack Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Booktrack Website or the Content therein.
You understand that when using the Booktrack Website, you will be exposed to User Submissions from a variety of sources, and that Booktrack is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Booktrack with respect thereto, and agree to indemnify and hold Booktrack, its affiliates, officers, directors, employees, agents and licensors (each, an "Indemnitee"), harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
While we may attempt to control access to Content that is not appropriate for young users, and have reasonable measures in place to stop use of Content that may be inappropriate for people under 18 years of age, we cannot take responsibility for access to age-inappropriate Content.
7. BOOKTRACK PRODUCTS
As a Booktrack account holder, you may have the option, using Booktrack's proprietary software or Booktrack licensed technology, to create a combination work comprising text, images, video and/or multimedia content synchronized with music, sound effects or ambient audio (a "Booktrack Product").
By uploading or otherwise providing any Media (where "Media" means any audio, text, images or other media) for inclusion in a Booktrack Product, you represent and warrant to us that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Booktrack to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all such provided Media and have all necessary consents to collect, use and disclose any personally identifiable information contained or displayed in such Media to enable inclusion and use of the Booktrack Products in the manner contemplated by the Website, Platform or this Agreement, including making the Booktrack Product available to users of the Website and other distribution channels, promoting the Booktrack Products on the Website or through other media, and any present or future Monetization Services. Notwithstanding these representations and warranties, we may remove or block access to any Media at any time, and we may in our sole discretion replace any such Media with other Media.
If you select the "Make my media available to other Booktrack users" option with respect to any Media you upload or otherwise provide, you represent and warrant to us that you own or have the necessary licenses, rights, consents, and permissions to authorize Booktrack to authorize other users to create Booktrack Products using such Media without restriction.
For clarity, you retain all of your ownership rights in your original contributions to any Booktrack Products that you create, and (as between you and Booktrack) all of your ownership rights in any Media you have uploaded or otherwise provided. However, you acknowledge that your ownership rights do not extend to any Media you have selected from Booktrack's library (including Media provided Booktrack itself and Media provided by other users). You may use your Booktrack Products in connection with any Monetization Services we make available (but you understand that not every Monetization Service may be available for every Booktrack Product), and you may separately distribute them yourself or through, in each case, one of Booktrack's approved distribution channels.
You hereby grant to Booktrack throughout the universe, a non-exclusive, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use in such manner as Booktrack deems appropriate your Booktrack Products by any and all means in any and all media (whether currently existing or which subsequently become known) including without limitation the right to adapt, edit, mix, add to, subtract from, arrange, re-arrange, revise, change, reproduce, publicly perform, transmit, create derivative works from, and make available your Booktrack Products. You hereby irrevocably waive in full any and all moral rights and performers' rights, without any reservation or hold-back of rights, which may accrue in connection with your creation or our other users' use of the Booktrack Products pursuant to these Terms of Service. Where the law does not recognize or allow the waiver of any such rights, you hereby consent to any and all acts or omissions of Booktrack that would, but for this consent, infringe any of your applicable rights.
You represent, warrant and covenant to Booktrack that you have not and shall not enter into any arrangement which might inhibit, restrict or place further conditions in any way on the exercise of the foregoing or any other rights provided to Booktrack pursuant to this Agreement; and that you will not enter into any commitment, contract or arrangement with any third party on behalf of Booktrack nor make any payment or agree to pay any third party on behalf of Booktrack, without the prior consent of Booktrack.
You further agree that you will not create any Booktrack Product that is contrary to the Booktrack Community Guidelines, found at http://info.booktrack.com/guidelines, which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations.
If you delete your account or request that we remove any of your Booktrack Products from distribution, we will remove them from the Website. However, we will not delete or otherwise restrict access to copies of your Booktrack Products in the possession of other users who have purchased them. You also understand that we cannot control third-party distributors, and that you thus may also need to request that these distributors cease offering your Booktrack Products.
8. USER SUBMISSIONS AND CONDUCT
As a Booktrack account holder you may submit Media or other textual, audio, visual, or audiovisual content, including but not limited to comments, reviews, polls, profile images, forum messages or instant messages, with such user submitted content, other than Booktrack Products, collectively referred to as "User Submissions." You understand that whether or not such User Submissions are published, Booktrack does not guarantee any confidentiality with respect to any User Submissions.
You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Booktrack to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions and have all necessary consents to collect, use and disclose any personally identifiable information contained or displayed in any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service.
For clarity, you retain all of your ownership rights in your original User Submissions. However, by submitting User Submissions to Booktrack, you hereby grant Booktrack a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to use, reproduce, prepare derivative works from, distribute, display, perform and digitally transmit the User Submissions in connection with the Booktrack Website/Platform and its affiliates. You also hereby waive any moral rights you may have in your User Submissions and grant each user of the Booktrack Website a non-exclusive license to access your User Submissions through the Website. You understand and agree, however, that Booktrack may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted.
In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner and the necessary consents from any individuals whose personally identifiable information is contained in such material to post the material and to grant Booktrack all of the license rights granted herein.
You further agree that you will not, in connection with User Submissions, submit material that is contrary to the Booktrack Community Guidelines, found at http://www.booktrack.com/community, which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations.
Booktrack does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Booktrack expressly disclaims any and all liability in connection with User Submissions. Booktrack does not permit copyright infringing activities and infringement of intellectual property rights on its Website and Platform, and Booktrack will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights or contravenes any applicable privacy legislation. Booktrack reserves the right to remove Content and User Submissions without prior notice.
9. PURCHASES; PAYMENTS
We sell Booktrack Products only to end user customers who have created an account on the Platform. If you purchase any Booktrack Product (including any eBook Content that may be incorporated into the Booktrack Product), then immediately upon payment (including any applicable taxes charged) and your download of a copy of the Booktrack Product, we hereby grant you a nonexclusive, nonsublicensable, limited license to view, use, perform and display such Booktrack Product, solely by means of the Booktrack Website or a Booktrack reader application, or as permitted as part of the Platform, and solely for your personal, non-commercial use. The Booktrack Product is licensed, not sold, to you. Some Booktrack Products may be subject to additional terms and conditions. Those terms and conditions will also apply, but these Terms of Service will govern in the event of a conflict. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or assign any rights to the Booktrack Product or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Booktrack Product. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Booktrack Product.
Booktrack is not responsible for any additional bank fees, interest charges, finance charges, overdraft charges, or other fees resulting from charges billed by Booktrack. Currency exchange settlements will be based on agreements between you and the provider of your credit card. Prices listed or quoted on the Platform do not include any applicable taxes, except where required by applicable law. You agree that Booktrack will not give pro-rated refunds for unused time of the Booktrack services. We reserve the right to change our fees, but will notify you in advance of increases.
Booktrack does sell Booktrack Products for children, but we sell them to adults, who can purchase with a credit card or other permitted payment method. If you are under the age of eighteen (18), you may make purchases of Booktrack Products only with the involvement of your parent or guardian. Make sure you review these purchase terms with your parent or guardian so that you both understand all of your rights and responsibilities.
All sales of Booktrack Products are final and as such all charges are non-refundable unless expressly stated otherwise. Without restricting the general nature of the foregoing, once you begin downloading your Booktrack Product purchase, you will not be able to cancel your order. For questions about Booktrack service charges and balances, please contact us at email@example.com or call +64 9 281 3831. Our postal address is PO Box 33-1589, Takapuna, Auckland 0622, New Zealand.
10. ACCOUNT TERMINATION POLICY
Booktrack will terminate a User's access to its Website, under appropriate circumstances (which may include repeat infringement), if the User is determined to infringe any Booktrack or third-party intellectual property or other rights.
Booktrack reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement or privacy law, such as, but not limited to, hate speech, pornography, obscene or defamatory material, or excessive length. Booktrack may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
11. COPYRIGHT POLICY
Booktrack respects the intellectual property rights of others, and expects its users to do the same. Booktrack will respond expeditiously to claims of copyright infringement committed using the Website if such claims are reported to Booktrack's Designated Copyright Agent identified below.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Website by completing the following DMCA Notice of Alleged Infringement and delivering it to Booktrack's Designated Copyright Agent. Upon receipt of Notice as described below, Booktrack will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Website.
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Booktrack Website, please notify Booktrack's copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 ("DMCA"). For your complaint to be valid under the DMCA, you must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner; identification of the copyrighted work or works that you claim has been infringed; identification of the material that is claimed to be infringing and where it is located on or in the Platform, or a representative list of such works if you intend to cover multiple works in a single notice; information reasonably sufficient to permit Booktrack to contact you, such as your address, telephone number, and, e-mail address; a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and a statement, made under penalty of perjury, that the information you have submitted is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: Booktrack DMCA Notice
UNDER UNITED STATES FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
Please note that this procedure is exclusively for notifying Booktrack that your copyrighted material has been infringed. The preceding requirements are intended to comply with Booktrack's rights and obligations under the DMCA, including but not limited to 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
YOU AGREE THAT YOUR USE OF THE BOOKTRACK WEBSITE AND PLATFORM SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, BOOKTRACK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND PARTNERS (INCLUDING MANUFACTURERS OF DEVICES THAT EXECUTE MOBILE APPLICATIONS ACCESSING THE BOOKTRACK WEBSITE) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, LEGAL, STATUTORY, CONTRACTUAL, EXTRA-CONTRACTUAL, DELICTUAL OR IN TORT, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS AND CONDITIONS, THE WEBSITE AND YOUR USE THEREOF OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE. BOOKTRACK MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE BOOKTRACK WEBSITE. BOOKTRACK EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF ANY KIND OF FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, QUALITY, MERCHANTABILITY, WORKMANSHIP, NON-INFRINGEMENT, OR TITLE AND OWNERSHIP. BOOKTRACK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE BOOKTRACK WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND BOOKTRACK WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE HEREBY DISCLAIMED.
You understand that nothing in these Terms of Service constitutes an undertaking by Booktrack to (a) accept any or all of the Booktrack Products you create; (b) make any use of the Booktrack Products or any of the rights granted to Booktrack under this Agreement, or maintain any such use once made; (c) incorporate the whole or any part of the Audio Cues in the Platform or any Booktrack Products; or (d) ensure complete security of any information or User Submissions which are sent to or made available to Booktrack; provided that once such material is received by Booktrack, Booktrack will take reasonable steps to preserve the security of such material.
In the event that your Booktrack Products are not made available for other users, you shall have no claim against Booktrack for loss of opportunity to enhance your reputation or for any other matter whatsoever.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL BOOKTRACK, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, ECONOMIC, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE BOOKTRACK WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ARISING BY LAW, STATUTE, USAGE OF TRADE, CUSTOM, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATION WITH ONE ANOTHER, OR AS A RESULT OF THE NATURE OF THESE TERMS AND CONDITIONS OR IN CONFORMITY WITH USAGE, EQUITY OR LAW OR OTHERWISE, AND WHETHER OR NOT BOOKTRACK IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT BOOKTRACK SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. Booktrack makes no representations that the Booktrack Website or Platform is appropriate or available for use in your location. Those who access or use the Booktrack Website do so at their own volition and risk and are responsible for compliance with local law.
In the event that either party to this Agreement has a dispute relating to or arising from this Agreement or the use of the Booktrack Website, they must immediately notify the other party in writing giving details of the dispute.
If the parties cannot resolve the dispute within fourteen (14) days of receipt of the notice provided for above, the dispute will then be submitted to mediation by a mediator agreed to by the parties, or failing agreement, appointed by JAMS at the request of either party. If the matter is not resolved by mediation within fourteen (14) days from there, the matter will be submitted for arbitration in accordance with the Federal Arbitration Act (9 U.S.C. § 1 et seq.), by a single arbitrator to be appointed by the parties or, failing agreement, appointed by JAMS at the request of either party.
Any such mediation or arbitration shall take place in San Francisco, California, U.S.A. at such location and venue as the parties shall agree or, failing agreement on a location and venue, by such means (including without limitation teleconference or videoconference) as the parties shall agree or, failing agreement, by such means as may be determined by the applicable mediator or arbitrator. Unless the parties agree otherwise, English shall be the sole language of all such proceedings.
All costs in relation to the staging of such proceedings (excluding for the avoidance of doubt any awards which may be made) shall be borne equally by the parties unless explicitly stipulated otherwise by the arbitrator or agreed otherwise by the parties.
BY AGREEING TO THIS ARBITRATION PROVISION, EACH PARTY UNDERSTANDS THAT BOTH YOU AND WE ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. BOTH PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless the parties agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of representative or class proceeding.
IN THE EVENT YOU HAVE A CLAIM AGAINST BOOKTRACK OR ANY THIRD PARTY, RELATING TO, OR ARISING FROM THESE TERMS OF SERVICE, IT WILL BE LIMITED TO MONETARY COMPENSATION AND YOU WILL NOT BE ENTITLED IN ANY CIRCUMSTANCES TO SEEK ANY FORM OF INJUNCTIVE RELIEF OR SPECIFIC PERFORMANCE IN RELATION TO THE BOOKTRACK PRODUCTS, USER SUBMISSIONS, MEDIA, THE BOOKTRACK WEBSITE, OR OTHERWISE.
You agree to defend, indemnify and hold harmless the Indemnitees from and against any and all claims, demands, causes of action, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable legal fees) (each, a "Claim") arising from: (i) your use of and access to the Booktrack Website and/or Platform; (ii) your violation of any term of the Agreement or breach of any representation or warranty made herein; (iii) your violation of any third party right, including without limitation any copyright, intellectual property, or privacy right, including by creating and distributing any Booktrack Product; (iv) any license, performing rights organization, collection society or similar fee arising out of your creation of any Booktrack Product; or (v) any claim that one of your Booktrack Products or User Submissions caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Booktrack Website and/or Platform. You shall not settle any Claim against an Indemnitee without Booktrack's permission, not to be unreasonably withheld.
16. ABILITY TO ACCEPT TERMS OF SERVICE
You affirm that you are older than 13, as the Booktrack Website is not intended for children younger than 13. As well, you affirm that you are either more than the age of majority in your jurisdiction of residence, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, to create an account on the Booktrack Platform, and to abide by and comply with this Agreement.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Booktrack without restriction.
18. BOOKTRACK INTELLECTUAL PROPERTY
Some aspects of the Booktrack Website and/or Platform may now or in the future be protected by patents in the United States and other jurisdictions. In particular, Booktrack owns U.S. Pat. App. No. 13/002,634 and its foreign counterparts, continuations, divisionals and any other patents that may issue therefrom.
The Booktrack Website is © Booktrack Holdings Limited 2015. All rights reserved.
19. COUPONS, DISCOUNTS AND PROMOTIONS
In case you use this Website or Platform pursuant to any coupons, discounts or promotions, please refer to the specific terms and conditions that govern the respective coupons, discounts and promotions. Notwithstanding the above, these Terms of Service also govern all such transactions made pursuant to any coupons, discounts or promotions, unless they conflict with specific terms of the coupons, discounts or promotions, in which case those specific terms shall prevail.
Subject to Section 14, this Agreement shall be governed by the laws of California, without reference to California's conflict of laws rules. The Booktrack Website shall be deemed a passive website that does not give rise to personal jurisdiction over Booktrack, either specific or general. This Agreement, together with any other legal notices published by Booktrack on the Website, shall constitute the entire agreement between you and Booktrack concerning the Booktrack Website. If any provision of these Terms of Service is deemed unenforceable or invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Booktrack's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Booktrack reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Booktrack Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. TO THE MAXIMUM EXTENT PERMITTED BY LOCAL LAW, YOU AND BOOKTRACK AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE BOOKTRACK WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.