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Terms of Service

1. Overview

This Agreement states the terms and conditions by which GradMags Publishing will deliver and Company will receive services (collectively, the “Services”) provided by GradMags Publishing. The Services that Company may request hereunder, and any additional terms applicable to such Services, are set forth in the Exhibits set forth on the General Information Sheet and signed by authorized representatives of Company and GradMags Publishing. This Agreement is intended to cover any and all services ordered by Company and provided by GradMags Publishing.

2. Provision of Services

GradMags Publishing will provide services that will include digital publication preparation, iOS APP development (including branding), iOS approval and web hosting for Company. GradMags Publishing hereby grants to Company a nonexclusive and nontransferable license for Company and its Users to access and use the computer system(s) used by GradMags Publishing to provide the Services (the “GradMags Software”) solely in connection with the provision of the Services and subject to the limitations herein.

3. Use of the Services

3.1 Compliance with Laws. Each party agrees to comply with all applicable laws, rules and regulations, including any Internet regulations or policies and applicable export laws, in its performance under this Agreement. 3.2 Privacy. GradMags Publishing respects the privacy of Company and Users. GradMags Publishing will only access and disclose any user names, addresses or passwords, or content of messages or data files transmitted through the GradMags Software or by means of the Services as required by law, to provide the Services, to operate or maintain the GradMags Software or to protect itself or Company.

4. Ownership and Licensing

4.1 GradMags Publishing Rights. GradMags Publishing shall retain all proprietary rights in and to the Services and GradMags Software. All software, source and object code, specifications, designs, processes, techniques, concepts, improvements, discoveries, and inventions made or developed by GradMags Publishing in connection with the Services will be the sole and exclusive property of GradMags Publishing. As between Company and GradMags Publishing, Company shall own all right, title and interest in the User Information, subject to GradMags Publishing’s right to use such User Information as required to perform under, or as otherwise expressly permitted by, this Agreement. 4.2 Company Proprietary Rights. Company shall retain all proprietary rights in and to its name and editorial content it provides for publication. Company acknowledges that the Services provided to Users may contain Company-provided information, photographs, audio and video clips, graphics, links and other material that are protected by copyright, trademark or other proprietary rights of Company or third parties, including but not limited to product names, logos, designs, titles, and words or phrases which may be registered in certain jurisdictions (collectively the “Content”). Company agrees that it has the rights to provide the Content to GradMags Publishing for use in the Services, including the rights to distribute such Content on the Internet, iOS or Android platform.

5. Payment

5.1 General Payment Terms. All payment collected by GradMags in connection with delivery of any service is exclusive of any sales, property or any other taxes associated with the provision of Services or of Company’s access to or use of the GradMags Software. All undisputed payments are due on completion of conversion of digital editions and will be charged to Company’s credit card or other method. 5.2 Fees. All amounts payable shall be specified as part of the fee schedule.

Services Providers

We employ third party companies and individuals to facilitate our Services (such as maintenance services, database management, web analytics and improvement of our Services' features), to provide the Services on our behalf, or to assist us in analyzing how Services are used. These third parties have access to your Personal Information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.

6. Disclaimer of Warranties.

6.1 No Warranties. GRADMAGS PUBLISHING AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES OR THE GRADMAGS SOFTWARE AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. 6.2 Internet Usage. GradMags Publishing and its suppliers make no warranties regarding the quality, reliability, timeliness or security of the Services or the GradMags Software or that the Services, the Software or the GradMags Software will be uninterrupted or error free. GradMags Publishing and its suppliers assume no responsibility or liability for the deletion or failure to store, or to store properly, email messages. Company and Users assume the entire risk in downloading or otherwise accessing any data, files or other materials obtained from third parties as part of the Services or by means of the GradMags software. 6.3 Company’s Responsibilities. Company shall be solely responsible for any warranties provided to Users with respect to the Services or the GradMags Software.

7. Limitation of Liability.

IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER (INCLUDING LIABILITY UNDER ANY WARRANTY OR REMEDY SET FORTH IN A SERVICE EXHIBIT), REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNT PAID BY COMPANY TO GRADMAGS PUBLISHING HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO ANY CLAIM. IN NO EVENT WILL EITHER PARTY, OR ITS SUPPLIERS, BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE PARTY OTHERWISE LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GRADMAGS PUBLISHING WILL NOT BE LIABLE FOR ANY ACTUAL OR ALLEGED INFRINGEMENT BY ANY THIRD PARTY MATERIALS AVAILABLE THROUGH THE SERVICES.

8. Indemnification.

8.1 GradMags Publishing Indemnity. GradMags Publishing will defend any third-party suit or action against Company to the extent such suit or action is based on a claim that the Services infringe any valid United States patent, copyright, trade secret or other proprietary right, and GradMags Publishing will pay those damages and costs finally awarded against Company in any monetary settlement of such suit or action which are specifically attributable to such claim. These obligations do not include any claims to the extent they are based on use of the Services in violation of this Agreement or in combination with any other software or hardware not provided by GradMags Publishing, or any modification to the Services by Company. If any portion of the Services becomes, or in GradMags Publishing’s opinion is likely to become, the subject of a claim of infringement, then GradMags Publishing will, at its expense, (a) procure for Company the right to continue using such Services or (b) replace or modify the Services so that they become non-infringing. The indemnity obligations set forth in this Section 9.1 are contingent upon: (a) Company’s giving prompt written notice to GradMags Publishing of any such claim(s); (b) GradMags Publishing having sole control of the defense or settlement of the claim; and (c) at GradMags Publishing’s request and expense, Company reasonably cooperating in the investigation and defense of such claim(s). The foregoing states GradMags Publishing’s entire liability for infringement claims. 8.2 Company’s Indemnity. Subject to Section 7, Company will defend, indemnify and hold GradMags Publishing harmless from and against any and all claims, actions or demands resulting from Company’s breach or other violation of this Agreement. The indemnity obligations set forth in this Section 9.2 are contingent upon: (a) GradMags Publishing giving prompt written notice to Company of any such claim(s); (b) Company having sole control of the defense or settlement of the claim; and (c) at Company’s request and expense, GradMags Publishing reasonably cooperating in the investigation and defense of such claim(s).

9. Terms and Termination.

9.1 Terms and Extension. The terms of our services shall remain in effect for as long as you use our services. 9.2 Termination for Breach. GradMags Publishing may terminate use of services immediately upon sending written notice to Company if Company breaches this Agreement. GradMags Publishing's obligations to provide services hereunder may be suspended or terminated during any period Company is in default under this Agreement. GradMags Publishing shall be entitled to retain all payments made hereunder as liquidated damages, which shall not constitute a waiver of other damages to which GradMags Publishing may be entitled.

10. Miscellaneous

10.1 Notices. Notices under this Agreement must be in writing and will be deemed given when delivered personally, or by email or facsimile (with confirmation of receipt) or by conventional mail (registered or certified, postage prepaid with return receipt requested). Notices will be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each party may change the address by written notice in accordance with this paragraph.

10.2 Force Majeure.

Neither party is responsible for any delays, errors, failures to perform, interruptions or disruptions in the Services or the GradMags Software caused by or resulting from any act, omission or condition beyond GradMags Publishing’s reasonable control, whether or not foreseeable or identified, including without limitation strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disaster (each a “Force Majeure Event”).

10.3 General Provisions.

This Agreement will be governed by and construed in accordance with the laws of the State of Texas exclusive of its conflict of law principles. Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship between GradMags Publishing and Company. If any provision of this Agreement is held invalid, illegal or unenforceable, such provision will be reformed only to the extent necessary and in such a manner to affect the original intention of the parties; all remaining provisions continue in full force and effect. Any failure by either party to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent default or breach of the same or a different kind. The information contained herein constitutes a trade secret or information that is confidential or privileged. It is furnished to Company in confidence with the understanding that it cannot, without permission of GradMags Publishing, be used or disclosed other than for internal evaluation purposes.

Coded with Passion in Austin, Texas
© 2012, GradMags Publishing
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