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Publication Purchase Terms & Agreement

April, 2017


 

The terms and conditions listed below apply to Publications in printed, eBook, CD/DVD, and any/all other electronic formats. These terms are intended to supplement the Order Form, if any, the Digital Rights Management (DRM), and any terms posted on any site from which the Publication is purchased and, if so purchased, any terms within the Publication itself, when combined, constitute the entire agreement between Blue 360 Media, LLC (referred to herein as “us,” “we,” “our,” or “Publisher”) and the purchasing entity (referred to herein as “you,” “your,” or “Purchasing Entity”) of the Publication Services and/or Publications or other materials provided.

Definitions and Key Terms:

When we reference:

a.

Publication.” This term means any single body of content or information compiled or created by, or distributed by, the Publisher in any media (e.g. printed publication, electronic newsletter, video series, etc.), including any Electronic Publication and updates thereto.

b.

Electronic Publication(s).” This term will encompass any electronic access, including the contents of Publication(s) through eBook, CD-ROM, browser or software based electronic access, flash drive or access through any removable drive.

c.

Publication Services.” This means Blue 360 Media LLC’s acts of providing access to content and style of its Publications, Electronic Publications, Updates, Forms, and any other material provided through (but not limited to) layout, design, editing, third-party contracting, website maintenance, technology, and the like.

d.

Material.” This means any part of Publications Electronic Publications, Updates and any other content or data provided by the Publisher or otherwise accessed by you pursuant to this Agreement.

e.

Updates.” This means any supplement, new release, new edition, or any other update to the Publication, the content of the Publication, or any update of any portion of the content in the publication.

f.

Order Form.” This term means the order form provided to you by the Publisher, either on its website in electronic form, or provided by a representative of the Publisher in any media.

g.

Authorized Users.” This term means an eligible person to whom the Purchasing Entity has duly assigned permitted use of the Electronic Publication(s).

1. Electronic License Grant and Limitations of Use: Per the terms of this agreement, and by signing the Order Form, the Publisher grants the Purchasing Entity and its Authorized Users a non-exclusive, non-transferable license to access the Publication(s) listed on the Order Form.

1.1 To the extent permitted by applicable copyright law and not further limited or prohibited by the Supplemental Terms, you and your Authorized Users may:

(a) make a single printout of Publications or portions thereof, using the printing commands of your web browser;

(b) make and distribute copies of Authorized Printouts (from Section 1.1(a));

(c) copy, revise, customize and use the forms, templates, checklists and precedents that form part of the Publications (“Forms”);

(d) excerpt or quote insubstantial portions of Publications in documents prepared for use in the ordinary course of your business; and

(e) as it relates to Electronic Publications,

(i) unless otherwise restricted by the embedded DRM, occasionally transfer the Electronic Publication from one display device to another so long as the Electronic Publication is displayed on only one display device at a time; and

(ii) remove, disable, or defeat any functionality in the Electronic Publication designed to limit or control access to or use of the Electronic Publication.

1.2 The Purchasing Entity and its Authorized Users may not:

a.

create its own independently searchable database of any materials obtained directly or indirectly from its access to the Publication(s);

b.

attempt to disassemble, reverse engineer or reverse compile any of the Electronic Publications and, with respect to technology related to the Electronic Publications, otherwise reduce to human-perceivable form;

c.

remove or obscure the copyright notices or other notices contained in Materials;

d.

offer any part of the Online Services or Materials for commercial resale or commercial redistribution in any medium or use the Electronic Publications or Materials to compete with the business of Blue 360 Media, LLC.

1.3 All right, title, and interest (including all copyrights and other intellectual property rights) in any Publication or Electronic Publications, regardless of the form of medium, belong to or have been duly obtained or licensed by us. The Purchasing Entity acquires no ownership of copyright or other intellectual property rights or proprietary interest in the Publication(s) and Electronic Publications, or copies thereof, except the limited rights granted herein.

2. Changes to Electronic Formats: From time-to-time, the Publisher might enhance its services and upgrade the technology, contents, or formats used deliver the Publication(s). When possible, we will make reasonable attempts to notify you in advance, but certain changes may need to be made without notice. the Publisher will not be held responsible for any costs that may be incurred as a result of changes.

3. Changes to the Publication Term(s) of Use: From time-to-time, the Publisher may change the Publication Terms of Service. If changes are made, they will apply only to prospective purchases for similarly-situated purchasers.

4. LIMITED WARRANTY

4.1

We represent and warrant that we have the right and authority to make the Publication Services, Publication(s) and Electronic Publication(s) available pursuant to the terms and conditions of this Agreement.

4.2

All Materials and Publication Services that are subject to this Agreement and provided by Blue 360 Media LLC are provided for reference purposes only and are not intended, nor should they be used, as a substitute for professional advice or judgment or to provide legal or medical advice with respect to particular circumstances.

4.3

THE PUBLICATION SERVICES AND MATERIALS SUBJECT TO THIS AGREEMENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND BLUE 360 MEDIA LLC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. LIMITATION OF LIABILITY

5.1

A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from: (a) any errors in or omissions from the Publication Services or any Materials available or not included therein; (b) the unavailability or interruption to the supply of the Publication Services or any features thereof or any Materials; (c) Purchasing Entity or its Authorized User’s use or misuse of the Publication Services or Materials (regardless of whether you received any assistance from a Covered Party in using or misusing the Publication Services); (d) the loss or corruption of any data or equipment in connection with the Publication Services; (e) the content, accuracy, or completeness of Publications; (f) any delay or failure in performance beyond the reasonable control of a Covered Party; or (g) any content retrieved from the Internet even if retrieved or linked to from within the Publication Services, all regardless of whether you received assistance in the use of the Publication Services from a Covered Party.

5.2

“Covered Party” means: (a) us, our affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of us or our affiliates; and (b) each third-party supplier of Materials, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or any of their affiliate

5.3

TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE PUBLICATION SERVICES OR MATERIALS SHALL NOT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE PUBLICATION SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION. WITH RESPECT TO A PUBLICATION, BLUE 360 MEDIA, LLC. WARRANTS IT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP FOR 30 DAYS. YOUR EXCLUSIVE REMEDY AND THE SOLE OBLIGATION OF BLUE 360 MEDIA FOR A DEFECTIVE PUBLICATION SHALL BE THAT BLUE 360 MEDIA SHALL PROVIDE A REPLACEMENT COPY OF A DEFECTIVE PUBLICATION OR REPAIR OR REPLACE THE SAME.

5.4

TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER YOU NOR THE COVERED PARTIES SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, OR DATA, OR OF ANY KIND WHATSOEVER INCLUDING, WITHOUT LIMITATION, LEGAL FEES, IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE PUBLICATION SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE OF ANY COVERED PARTY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A COVERED PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS’) INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO US OR OUR THIRD PARTY SUPPLIERS.

5.5

Notwithstanding anything to the contrary herein, if there is a breach of warranty in Clause 5.1, then we, at our option and expense, will either defend you or indemnify and hold the Purchasing Entity harmless against proceedings or damages based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to the use of the Publication Services or Materials, provided: (a) the third party claim was not caused by your improper use of the Publication Services or Materials; (b) you give us prompt notice of such third party claim; (c) you give us the sole right to control and direct the investigation, defense and settlement of such claim; and (d) you, at our expense, reasonably cooperate with us in connection with the foregoing.

5.6

If the Online Services or the operation thereof become, or in the opinion of Blue 360 Media, LLC. are likely to become, the subject of a claim of infringement, Blue 360 Media may, at its option and expense: (a) procure for you the right to continue using the Publication Services; (b) replace or modify the Publication Services so that they become non-infringing; or (c) terminate this Agreement on notice to you and grant you a pro-rata refund or credit (if either is applicable) for any fees or fixed charges you may have pre- paid.

5.7

The provisions of Clauses 5.5 and 5.6 shall constitute your sole and exclusive remedy for the respective matters specified therein.

6. TERM: The term of this Agreement begins upon the date that appears on your Order Form or online.

7. SUBSCRIPTIONS; TERM; TERMINATION; RENEWAL; RETURNS

Publications may be offered as one-time sales/licenses, subscriptions (either with or without
auto-renewal), or subscriptions with multi-year offered multi-year pricing (“Multi-Year”)
(either with or without auto-renewal at the end of the multi-year commitment). The following
describes the types of subscriptions:

(a) “S” Service Subscription -Price includes product and Updates published during the indicated service period (minimum 30 days) at no additional charge except tax, shipping and handling where applicable. Renewal options include:

(i) “S/A” or “S/AR” Service Subscription with Automatic Renewal - If you select this option your subscription will be automatically renewed without any action on your part. Notification that the subscription is due to be renewed, and the price of renewal, will be sent to you 60 days prior to renewal. Estimated prior-year prices and update frequency are shown with the description of each title.

(ii) “S/N” or “S/AS” Service Subscription with Notification - Notification that the subscription is due to be renewed, and the price of renewal, will be sent to you 60 days prior to renewal. If you fail to act, your subscription will be canceled.

(b) “N” Non-Service Subscription - Price includes product only, plus any Updates published within 30 days of purchase or as otherwise indicated. Subscription options include:

(i) “NS/A” or “NS/AR” Non-Service Subscription with Automatic Renewal - If you select this option you will receive and be billed for future updates outside of the 30-day period without any action on your part. Estimated prior year prices and update frequency are shown with the description of each title. Non-Service Electronic Publications will be updated via automatic shipment to you, or by pushing the Update to you electronically or notifying you than an Update is available for download.

(ii) “NS/N” or “NS/AS” Non-Service Subscription with Notification - Notification that an update has been published, and the price of the update, will be sent to you. If you fail to act, you will not receive the update.

(c) Additional pricing information for subscriptions:

(i) Unless otherwise indicated, pricing (including any grand total, retail price, or other pricing, unless otherwise indicated) does not include tax or shipping and handling, which will be charged and due at the then current rates. Shipping and handling amounts will be invoiced separately and will be included in your final invoiced amount. If you have chosen a monthly billing option, shipping and handling charges will be prorated over the term of the subscription and billed accordingly.

(ii) Advertised prices are subject to change without notice.

(iii) By placing an order, you agree you have been advised of the number of Updates and the cost related to the Updates that were made to the Publications last year. Renewal and Update price estimates are based on prior year costs and do not reflect actual costs associated with future renewal and Updates, which will likely include an increase over prior year’s subscription price. The number of Updates and the upkeep costs may vary due to developments in the law and other publishing issues, but you may use this as a rough estimate of future shipments. You may call customer support at 1-844-599-2887 for additional information on update frequency and price.

(d) General (Non-Multi-Year) Cancellation and Return Information:

(i) The Purchasing Entity may cancel any subscription at any time by calling Customer Support at 1-844-599-2887; emailing [email protected]; or returning an invoice or notification marked “CANCEL.” If you cancel a Subscription on any component of a product bundle or multi-media subscription, you will not be eligible for any of the discounts offered in connection with such order. The Purchasing Entity will receive a supplemental invoice for the remaining components of the product bundle or multi-media subscription order at their list price.

(ii) Shipments must be returned within 30 days of receipt, at your expense, for full credit of the advertised price, less shipping and handling fees and any other discount credits. All returns must be returned unused in the same condition as received. A copy of the invoice received with the shipment should be included with your return. A return shipping label is not provided. The Purchasing Entity can send your return to the following address:

Blue360 Media
Returns Processing Center
545 Wescott Rd
Eagan, MN 55123

(iii) If you cancel a Service Subscription between 31 and 60 days after the invoice date and you return the product at your expense, you will receive a 5/6th credit of the price for the annual subscription. To receive any credit, you must return all product(s) shipped during the applicable subscription period at your expense within the applicable cancellation period listed above.

(iv) If you return a Non-Service Subscription at your expense within 30 days of shipment, you will receive full credit for the purchase price. No credit will be given for returns more than 30 days after shipment. Return of a shipment, other than the initial purchase, will not cancel your subscription.

(v) No credit will be given more than 60 days after the invoice date for shipments to the 48 contiguous United States. However, this period is expanded to 90 days after the invoice date for orders shipped to Canada, and 120 days after the invoice date for orders shipped to the Virgin Islands, Puerto Rico, Hawaii, Alaska, and Non-US shipments.

(vi) All eBooks and CDs are non-cancellable and nonreturnable.

(vii) For any returns, a 20% restocking fee may be charged.

(viii) International and Book Store Sales. In addition to the refund/return rights listed in the Material Terms the following rights also apply:

(ix) University bookstores may return overstock of new, unmarked, and undamaged books in the original packaging within 12 months of the date of the original invoice or within 24 months of the date of the original invoice for Study Aids and receive 100% refund of the publication price. A copy of the original invoice must be included with the return. Shipping and handling fees are not a part of the publication price, are not refundable, and additional shipping and handling fees must be paid on returns.

8. We may, without notice to you, and at our full discretion, suspend or terminate this Agreement: (a) if you breach this Agreement or otherwise infringe on any intellectual property rights usage granted herein; or (b) if you breach or otherwise fail to comply with any other obligation in this Agreement (including payment obligations). Without prejudice to the foregoing, if you fail to pay any sum properly due hereunder, we reserve the right to seek enforcement of the full contract sum as well as to seek recovery of our legal costs and other expenses incurred by us in connection with your breach.

9. On termination of this Agreement if the Electronic Publication has an expiration date, you will cease use of, and destroy the outdated Electronic Publication. Blue 360 Media disclaims any and all liability associated with use of outdated Electronic Publications or Electronic Publications beyond their expiration date, if any. Additionally, for CDs, we and our licensors retain outright ownership of all CD-ROM discs. We do not require return of the CD-ROM discs delivered to you either at the end of the subscription period covering the CD-ROM discs or upon receipt by you of replacement CD-ROM discs. Consequently, you will not be able to access CD-ROM discs delivered to you after their expiration date. After the expiration date of a CD-ROM or upon receipt of an updated CD-ROM, you will cease use of and destroy the previous or outdated CD-ROM.

10. Confidential Information: The Order Form contains confidential information, including pricing information. The Purchasing Entity understands that disclosure of the Confidential Information could cause competitive harm to the Publisher. The Purchasing Entity agrees to receive and maintain the Confidential Information in trust and confidence and to take reasonable precautions against its disclosure to any third person.

11. License Terms. Effective upon notice to you, we may add, modify or otherwise change any rights to, or restrictions on, the use of the Publication Service and Publications as the same are currently set forth in this Agreement (the “License Terms”). If we exercise these rights, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Authorized Users but will apply to all similarly situated Blue 360 Media LLC customers using the Publication Services. If any changes made to the License Terms are unacceptable to you, you may terminate the Agreement upon 30 days’ written notice to us of the change that is unacceptable to you. For your termination to be effective under this Clause, we must receive your notice of termination within 90 days of the date of the change. Continued use of the Publication Services following the effective date of any change constitutes acceptance of the change but does not affect your other termination rights.

12. Notices. Except as otherwise provided herein, all notices and other communications to you hereunder shall be in writing or displayed electronically in the Publication Services by the provider thereof. Notices to you shall be deemed to have been properly given on the date mailed, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner. Notices to us should be sent to your account representative with a copy sent to Blue 360 Media, LLC. Attention: Vice President, Operations, 2750 Rasmussen Rd, Park City, Utah 84098.

13. Successors and Permitted Assigns. Subject to Clause 12, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns

14. Force Majeure: Non-performance of either party shall be excused to the extent that performance is rendered impossible where failure to perform is a result of actions omissions or circumstances beyond the reasonable control of the non-performing party, such as fire, weather, civil disturbance, act of military or court or governmental authority, strike (provided such strike is not caused by that party’s employees), change in law or other governmental regulations or act of God.

15. Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that you may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure by us to object to such terms, provisions or conditions.

16. Governing Law. This Agreement and the Additional Terms shall be governed by and construed in accordance with the laws of Utah regardless of the law that might otherwise apply under applicable principles of conflicts of law.

17. Limitation of Action. You may not bring a claim of action, regardless of form, arising out of or related to amounts billed or payments made under an Order Form more than 12 months after we first invoiced those amounts to you.

18. Order of Precedence. If there is a conflict between the terms and conditions of this Agreement, an Order Form, Additional Terms and any other document incorporated herein, the conflicting terms will be interpreted as narrowly as possible in the area of conflict and the conflict will be resolved by giving precedence in the following order: (a) the Additional Terms; (b) the terms of the Order Form; (c) the terms and conditions of this Agreement; and (d) the terms and conditions of any other document incorporated by reference herein.

19. Data and Privacy Laws. Our ability to provide Materials is subject to a variety of privacy, data protection and other laws in a variety of jurisdictions (“Data Laws” or “Privacy Laws” or both whichever is appropriate) and by the licenses under which it obtains Materials (“Licenses”).

20. Headings. The headings in the Agreement are for convenience only, and in no way affect the terms and conditions herein.

21. Amendments. This Agreement may not be amended, except in writing executed by both parties.

22. Limitation of Action. Any claims arising from or related to invoices or payments made must be brought forward within 12 months of the original invoice date.

23. Waiver. The waiver by either party of breach or default under this Agreement does not constitute the waiver of any subsequent breach or default. If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force and will be enforced to the maximum extent permissible by applicable law so as to affect the intent of the parties.

24. Payment Terms and Late Charges. Orders must be paid in full within 25 days from the date of your monthly statement or in equal monthly installments based on the subscription term. Overdue amounts will be assessed a late payment charge that will be compounded at a monthly rate of 1.167% or the maximum provided by law, whichever is less. There is a minimum late payment charge of ten dollars ($10.00).

25. Credit Investigation. You hereby authorize us to make whatever credit investigation we deem appropriate in order to provide you with a Publication.

26. Collection Costs. In the event that you fail to pay for publication service(s) within the agreed upon payment terms, you will be responsible for all collections costs, including, but not limited to, collection agency fees, reasonable attorneys’ fees (whether before or after suit is filed), filing fees and related court costs.