TERMS OF SERVICE
THESE TERMS OF SERVICE (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN CHATBOOKS, INC. (“CHATBOOKS”) AND YOU, EITHER AS AN INDIVIDUAL OR AN ENTITY (“YOU” OR “YOUR”), REGARDING THE SERVICE OR SERVICES (AS DEFINED BELOW).
BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICE, YOU EXPRESSLY: (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, AND (B) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY, COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (EACH AN “ENTITY”), YOU ARE ENTERING INTO THIS AGREEMENT FOR THAT ENTITY AND YOU REPRESENT TO CHATBOOKS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “YOU” OR “YOUR” AS USED HEREIN WILL ALSO REFER TO SUCH ENTITY AND ITS AFFILIATES. PLEASE NOTE THAT THESE TERMS INCLUDE A CLASS-ACTION WAIVER AND WAIVER OF JURY TRIALS.
- To use this on-line custom design and photobook Service (the “Service”) accessed at www.chatbooks.com (the “Site”), You must register an account with Chatbooks.
You may connect to the Service using any Internet browser and/or a Chatbooks mobile application. This
Service is intended for use by adults at least 18 years of age. You are responsible for:
- information submitted to the Service under Your user name and password (“Registration Data”);
- treating Your user name and/or password as confidential, and not disclosing it to any third party;
- the accuracy, quality and legality of all Registration Data You submit to the Service and the means by which You acquired such Registration Data;
- using commercially reasonable efforts to prevent unauthorized access to or use of the Service;
- promptly notifying Chatbooks of any unauthorized use of or access to the Service; and
- providing reasonable assistance to Chatbooks in investigating and preventing the recurrence of such unauthorized use or access. Chatbooks is not liable for any loss or damage arising from Your failure to protect Your Registration Data.
- You are responsible for obtaining access to the Internet and the equipment necessary to use the Service. If You use Your Facebook, Instagram iPhone Favorites or other photo source login(s) to register Your account, You are authorizing us to access certain information in Your Facebook and/or Instagram account.
- Subject to Your compliance with the terms of this Agreement, Chatbooks grants You a personal, limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Service during the term of this Agreement, whether accessed via an Internet browser, smartphone, tablet or other device: (a) solely in object code form; and (b) solely via a device that meets the minimum technical requirements necessary to run the Service (as determined by Chatbooks). Chatbooks, in its sole discretion, may make updates, upgrades or other new releases of the Service available to You.
- Chatbooks will employ reasonable measures to provide You with access to the Service. However, there will be occasions when the Service will be interrupted for maintenance, upgrades for emergency repairs, or due to the failure of telecommunications links or equipment or other circumstances that are beyond Chatbooks’ reasonable control. When possible, Chatbooks will take reasonable steps to minimize such disruptions within Chatbooks’ control.
- Chatbooks may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Service, or suspend or discontinue the Service or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Service or otherwise), without notice or liability to You or to any third party (except that, in the event of a complete discontinuation or scheduled suspension of the Service, Chatbooks will use reasonable efforts to provide You with actual notice, rather than merely constructive notice, as soon as commercially practicable under the circumstances). You agree that Chatbooks shall not be liable to You for any modification, suspension or discontinuance of the Service or any features or functions thereof.
- The Service may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other thirdparty software or materials, which in each case is embedded in the Service or provided by Chatbooks in connection with the Service (“Separately Licensed Software”). Your use of Separately Licensed Software is governed by the separate license terms specified by Chatbooks. This Agreement does not apply to Separately Licensed Software, and Chatbooks hereby disclaims all warranties with respect to any Separately Licensed Software and disclaims any liability to You or any third party based on any claims arising out of use of Separately Licensed Software. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable Separately Licensed Software end user license agreement.
Privacy and Use of Data
- If You provide any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service to Chatbooks, You agree that Chatbooks and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in connection with the Service, other related technologies and/or for any other purpose, on a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual basis. Chatbooks will not be obligated to implement any Feedback or correct any defects, bugs or errors in the Service identified in the Feedback or otherwise.
- Chatbooks may: (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use Your Data (including photos and/or videos) from the Service in aggregated form to create statistical analyses and for research and development purposes, (these sections (a) and (b) collectively, “Service Analyses”). Chatbooks may use Service Analyses for its business purposes; however, Service Analyses shall not incorporate Data in a form that could serve to identify You or any individual. Service Analyses do not constitute Your Data, and Chatbooks shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
- During and after the term of this Agreement, Chatbooks may: (a) collect, retain and use any Data submitted to the Service, including usage history, in order to provide and administer the Service; however, Chatbooks is not responsible for maintaining such Data, except as required by Law; and (b) access, read, preserve, and disclose any Data submitted to the Service that Chatbooks reasonably believes is necessary to: (i) satisfy any Law, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to a support request; or (v) protect its rights, property or safety, and that of its users and the public.
Rights and Restrictions
- You may use the Service solely for its intended purpose as set forth on the Site and in any documentation provided by Chatbooks for the use of the Service. You may not: share Your Registration Data for the Service with any other individual or allow any third party to access or use the Service (except that You are permitted to engage with other individuals who also hold a valid right to access and use the Service.
- You may not; (a) sell, resell, license, sublicense, distribute, rent or lease the Service, including the Service in a service bureau or outsourcing offering, or otherwise access or use the Service other than as expressly permitted hereunder; (b) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; (c) use the Service to store or transmit code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses; (d) interfere with, or disrupt the integrity or performance of, the Service or third-party data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks.
- You agree that you may not copy the Service or any part, feature, function or user interface thereof or otherwise: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Service; (b) frame or mirror any part of the Service, other than framing on Your own intranet or otherwise for Your own internal business purposes or as permitted in the documentation for the Service; (c) access the Service in order to build a competitive product or service, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (d) “harvest” or collect information from the Service (including information about other users of the Service or offerings, products or services available on the Service) using an automated software tool or manually on a mass basis; (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Service or any component thereof, in whole or in part, except as and only to the extent such restriction is permitted by any applicable federal, state, or local laws, codes, rules, regulations, or orders of any governmental authority (“Law”); (f) integrate or link to any open source software or freeware with the Service; (g) remove any proprietary notices, labels or marks from the Service; or (h) permit third parties to do any of the foregoing.
- You are not permitted to: (i) transfer or otherwise make the Service available to any third party; (ii) provide any service based on the Services without prior written permission; (iii) post links to third-party sites or use their logo, company name, etc. without their prior written permission; or (iv) use the Service for spamming and/or other illegal purposes.
- You agree that: (a) Your submission and the use of any Data in connection with the Service will be in compliance with Law; and (b) You will not upload any Data to the Service or print any Data using the Service that depicts violence, nudity, partial nudity or is unlawful, sexually suggestive, pornographic, offensive, discriminatory, threatening, libelous, defamatory, obscene, or otherwise violates any third party’s rights, including Intellectual Property Rights and/or privacy rights, or that violates this Agreement.
- Your use of the Service may be purchased on a one-time basis or on an on-going basis and You will be charged upon the completion of each photobook (minimum of sixty (60) pages) at Chatbooks; then-current pricing. All applicable fees will be charged to the credit card last used by You (the “Fees”). If Your credit card cannot be charged and no other credit card is on file with Chatbooks, Chatbooks will terminate your access to the Service.
- Chatbooks offers a 100% money back if You are not satisfied with the Service. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties. You will be billed, and payments will be made, in U.S. dollars.
- Chatbooks may increase the Fees from time to time, in its sole discretion. In addition, Chatbooks reserves the right to charge for use of Services that are currently available free of charge. You will not be charged for using any Service unless You have opted in to pay for such Service.
- This Agreement will remain in effect until: (a) Chatbooks terminates Your rights under this Agreement, which it may do immediately, without notice or liability, if You fail to comply with any term(s) of this Agreement; or (b) You cancel the Service, whichever occurs first. You may terminate Your access to the Service by submitted a request to Chatbooks’ customer support department.
- You acknowledge that if You breach this Agreement, Chatbooks may have no adequate remedy at law, will suffer irreparable harm as a result of such a breach, and therefore will be entitled to injunctive relief without the obligation of posting a bond. Upon any termination of this Agreement: (a) You agree to immediately cease using the Service; and (b) Your access to the Service will be automatically terminated and Registration Data will be removed. Upon cancellation or termination of this Agreement, Chatbooks may immediately delete or destroy all Data that You have uploaded, submitted or entered into the Service, subject to requirements of Law. Upon the termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except that provisions which by their nature should survive termination will survive, including use restrictions, indemnity obligations, warranty disclaimers, and limitations of liability.
- You will remain the sole and exclusive owner of all right, title, and interest in and to all of Your Data, including all Intellectual Property Rights therein and thereto, subject to any licenses granted herein to Chatbooks. You hereby grants to Chatbooks a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors and service providers), irrevocable, royalty-free, fully paid-up license to access, use and process the Data in accordance with the terms of this Agreement.
- If You are contacted by (or otherwise become aware of) a third party claiming rights in any portion of the Service, or claiming that use of the Service infringes any right of that third party, You must immediately notify Chatbooks and, at Chatbooks’ request, immediately cease use of the Service. If Chatbooks determines in its sole discretion that it cannot or should not otherwise allow You to continue using the Service because of such claim, Chatbooks may terminate this Agreement immediately by delivering notice to You without any resulting obligation or liability to You by reason of such termination.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CHATBOOKS EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
CHATBOOKS DOES NOT WARRANT THAT THE SERVICE WILL: PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES. CHATBOOKS SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME OF THE SERVICE, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICE, FAILURE OF THE SERVICE, OR OTHERWISE RELATING TO THE SERVICE.
USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM CHATBOOKS, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CHATBOOKS WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY, INCLUDING DAMAGES FOR COMPUTER MALFUNCTION, LOST PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, AND/OR THE COST TO OBTAIN SUBSTITUTE SOFTWARE OR SERVICES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SERVICE, HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF CHATBOOKS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CHATBOOKS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID TO CHATBOOKS FOR YOUR LICENSE TO THE SERVICE DURING THE LAST MONTH PRECEDING THE DATE THE CLAIM AROSE, OR PRORATED IF PAID ANNUALLY, OR U.S. $100.00. THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER AN ACTION IS IN CONTRACT OR TORT, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF CHATBOOKS AND ITS REPRESENTATIVES IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF SERVICE FAIL OF THEIR ESSENTIAL PURPOSE.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICE, THIS AGREEMENT OR ANY ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
You agree to indemnify, hold harmless and defend Chatbooks, including its licensees and their subsidiaries, affiliates, officers, directors, agents, employees, successors and assigns, from and against any and all liabilities, losses, fines, penalties, damages, judgments, awards, settlements, costs, and expenses (including reasonable attorneys’ fees and costs of investigation) arising out of or resulting from any claim, suit, action, demand or proceeding arising out of: (a) Your use or misuse of the Service; or (b) Your violation of the terms of this Agreement. Chatbooks reserves the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by You, in which event You agree to cooperate with Chatbooks in defending such action. Your indemnification, defense, and hold harmless obligations will survive the termination of Your use of the Site, the Service and/or this Agreement.
Export Control Laws
The Service is subject to export controls under the laws and regulations of the United States (“U.S.”) and any other applicable countries’ laws and regulations. You agree to comply with such laws and regulations governing export, re-export, transfer and use of the Service, and You shall obtain all required U.S. and local authorizations, permits, or licenses. You represent and warrant that: (a) You are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties.
Governing Law; Venue
This Agreement and any dispute or claim arising out of or related to this Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement, the Site or the Product shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and You further agree that such courts shall have in personam jurisdiction and venue with respect to You, and You hereby submit to the jurisdiction and venue of such courts and waive any objection. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. ADDITIONALLY, BOTH YOU AND CHATBOOKS AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.
This Agreement constitutes the entire agreement binding between You and Chatbooks with respect to Your use of the Site and the Service and supersedes all prior or contemporaneous understandings, whether written or oral, regarding such subject matter. Chatbooks reserves the right, in its sole discretion, to modify this Agreement at any time upon notice to You, including by posting a revised version of this Agreement on the Service. Any such modified Agreement will be effective immediately upon being made available to You, and your continued use of the Service thereafter constitutes Your affirmative acceptance of such modified Agreement. Otherwise, the terms of this Agreement may not be modified, in whole or in part, except by written agreement executed by an authorized signatory of Chatbooks. If You are dissatisfied with the terms of the Agreement or any modifications thereof, then You agree that Your sole and exclusive remedy is to discontinue any use of the Service.
Any remedy of Chatbooks set forth in this Agreement is in addition to any other remedy afforded to Chatbooks under applicable Law or otherwise. Chatbooks’ failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or by disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable. You may not assign or otherwise transfer any of Your rights or obligations under this Agreement without Chatbooks’ prior written consent. Any purported assignment in violation of this Section shall be void. Chatbooks may freely assign or otherwise transfer its rights or obligations under this Agreement. The terms and conditions of this Agreement shall apply to, and be binding upon, the approved successors and permitted assigns of the parties hereto. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. This Agreement does not and is not intended to confer any rights or remedies upon any person other than You and Chatbooks. For all purposes of this Agreement, the words “including” and “includes” mean inclusion without limitation.
Communications and Contacting Chatbooks
Communications from Chatbooks to You may be by electronic means. You hereby consent to receiving communications from Chatbooks in electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Chatbooks provides to You electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any nonwaivable rights.
The Service may include certain communications from Chatbooks, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. As part of Chatbooks’ policy to provide You total privacy, Chatbooks also provides You the option of opting out from receiving newsletters from us. However, You will not be able to opt-out from receiving service announcements and administrative messages.
If You have any questions about the Site, the Service or this Agreement, You may email us at firstname.lastname@example.org or write to us at:
382 W. Park Circle
Provo, UT 84603