IMPORTANT – READ CAREFULLY. YOUR USE OF ANY DOWNLOADABLE SOFTWARE PRODUCTS, FEATURES OR SERVICES AVAILABLE ON OR THROUGH THE BLURB WEBSITE IS CONDITIONED UPON YOUR COMPLIANCE WITH, AND ACCEPTANCE OF, THE FOLLOWING AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE ACCEPT BUTTON OR SIMILAR BUTTONS OR LINKS AS MAY BE DESIGNATED BY BLURB TO SHOW THESE TERMS AND/OR TO INSTALL THE SOFTWARE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. YOU WILL NOT BE PERMITTED TO USE THE SOFTWARE AND THE ASSOCIATED BLURB SERVICES UNLESS AND UNTIL YOU ACCEPT THIS AGREEMENT AND ANY OTHER RULES OR POLICIES THAT BLURB MAY CREATE AND MAKE AVAILABLE ON THIS WEBSITE FROM TIME TO TIME.
You represent and warrant that you are authorized to enter into this Agreement on behalf of yourself and/or the entity that you purport to represent and you agree your registration data is current, complete, and accurate. This Agreement will commence on the date that you complete the installation of the Software (the “Effective Date”).
1.1 “Blurb Template Library” means the templates created by Blurb for use by its customers to create and produce Books in accordance with the terms of this Agreement.
1.2 “Content” means any content, including but not limited to photographs, caricatures, illustrations, designs, icons, articles, text, audio clips and video clips.
1.3 “Partner Company” means a company that provides the Software and/or associated Blurb services by way of a co-branded or private label website.
1.4 “Software” means Blurb’s personal print-on-demand publishing services, and any other downloadable software offered from time to time by Blurb, including the BookSmart Software, Blurb Template Library, Blurb plug-ins and other software of third parties that Blurb offers to its Users, which enable Users to create, design, and lay out professional quality print and electronic books (each, a “Book”) by importing and/or naturally authoring Content with the Software.
1.5 “User” refers to a person or entity that has downloaded the Software.
1.6 “Website” means the Blurb website, currently located at http://www.blurb.com.
2. DELIVERY OF SOFTWARE. You will download and install the Software from the Website as specified by Blurb. During the term, Blurb may, in its sole discretion, notify you that it has released an updated version of the Software (the “Updated Software”). Upon your receipt of such notification, you agree to download the Updated Software and to use the Updated Software instead of the prior version. Any Updated Software will also be considered “Software” for purposes of this Agreement.
3. LICENSE. Blurb hereby grants to you a royalty-free, nonexclusive, non-transferable internal use license under copyright to use, display, execute, and perform the Software during the term of this Agreement for the sole purpose of creating Books for production by Blurb pursuant to this Agreement. You agree that you will not (a) reproduce, modify, distribute, transfer, disclose, or make available to any third party any portion of the Software (or any related user manuals, documentation, screenshots or prints) in any form; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (c) publish any performance or benchmark tests or analyses relating to the Software or the use thereof. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the jurisdiction where you are located give you the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from Blurb and Blurb may, in its discretion, either provide such information to you or impose reasonable conditions, including reasonable fees, on such use of the Software to ensure that Blurb’s proprietary rights in the Software are protected.
4. USER CONTENT. You represent that the Content that you provide to Blurb for the Book(s) produced hereunder shall not contain any material (a) protected by copyright, trademark, trade secret, patent or any other intellectual property right without authorization, or (b) that is defamatory, trade libelous, unlawfully threatening or harassing, pornographic, obscene or harmful to minors, or (c) that violates any law or regulation, including without limitation, the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising. CONTENT CANNOT BE EDITED ONCE IT IS UPLOADED TO THE WEBSITE. Therefore, you agree that (a) you will not upload the Content for any Book to the Website unless it has been fully proofed and you are satisfied that it is ready to be published; and (b) you will not upload any material to the Website, including but not limited to Content for any Book(s), that contains any computer viruses, worms or any other software intended to damage or alter a computer system or data. Blurb reserves the right to refuse to print any Book that contains Content that it determines in its sole discretion breaches any of the representations and warranties and covenants set forth above, and you agree to indemnify and hold Blurb and its subsidiaries, affiliates, officers, employees, suppliers, service providers and Partner Companies harmless for any claims, losses, liabilities and expenses arising out of or relating to any breach of this section.
5. SUBMISSIONS. You acknowledge that Blurb has no obligation to review the Content that you provide, but that Blurb reserves the right to (a) withhold, remove and/or discard User Content in accordance with its then-current User Content Policies and Terms and Conditions, as posted on the Website; (b) maintain the electronic files for any Book to fulfill any future orders which may be placed by User for such Book(s); and (c) maintain an archival copy of the printed Book.
6. TITLE. Blurb shall retain all right, title and interest in the Software and in all intellectual property rights therein. Subject to Blurb’s ownership of the Blurb Template Library, you shall own all Content that you include in any Books you submit to Blurb for production hereunder. You agree, however, that the combination of the Content with the Blurb Templates may only be used for the production of Books pursuant to this Agreement. No license or other rights of any kind are granted or conveyed except for the limited internal license expressly provided herein. You shall not offer, loan, transfer, encumber, sell or otherwise dispose of the Software to any third party without having received prior written authorization from Blurb. If you do so, the transfer will be deemed void.
7. TERMINATION. This Agreement and the licenses granted hereunder shall terminate immediately if you breach any term or condition hereof. In the event of a termination of this Agreement, (a) those sections that by their nature are intended by the parties to survive shall survive and continue in effect to the extent necessary to protect the rights of the parties, including but not limited to Sections 4, 5, 6, 7, 8, 9, 10, and 11, and (b) you shall cease all use of the Software.
8. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE THAT THE SOFTWARE PROVIDED MAY CONTAIN BUGS AND ERRORS. THE SOFTWARE PROVIDED TO YOU "AS IS" AND ANY USE OF THE SOFTWARE IS AT YOUR OWN RISK. TO THE EXTENT LEGALLY PERMITTED UNDER THE APPLICABLE LAW, BLURB DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY. YOU AGREE THAT TO THE EXTENT LEGALLY PERMITTED UNDER THE APPLICABLE LAW, BLURB SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU, YOUR CUSTOMERS OR THIRD PARTIES CAUSED BY FAILURE OF THE SOFTWARE TO FUNCTION. IN NO EVENT WILL BLURB BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, COST OF SUBSTITUTE GOODS, LOST DATA OR BUSINESS INTERRUPTION) IN CONNECTION WITH THE USE OF THE SOFTWARE OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF BLURB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF BLURB ARISING FROM OR RELATING TO THIS AGREEMENT AND THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD OR OTHER LEGAL THEORY) IS LIMITED TO THE AMOUNTS PAID BY YOU TO BLURB DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE Blurb’s LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF BLURB OR ITS AGENTS OR EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10. CONFIDENTIALITY. Blurb considers the Software and any technical information, evaluation or reports supplied to you to be proprietary, and you agree to treat the Software as confidential material in a manner no less protective than you use to protect your own similar assets, but in no event will you use less than reasonable care to protect the Software. Except as provided herein, you agree not to permit any third party access to the Software, nor to any materials generated by Blurb or you regarding the Software without Blurb’s advance written approval.
11. GENERAL PROVISIONS.
11.1 Feedback. In the event that you provide Company with feedback regarding the use, operation or functionality of the Software (“Feedback”), including but not limited to information about operating results, known or suspected bugs, errors or compatibility problems, or desired features, you hereby assign to Blurb all rights in the Feedback and agree that Blurb shall have the right to use the Feedback and related information in any manner it deems appropriate.
11.2 Governing Law, Venue and Arbitration. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You and Blurb agree to submit to the jurisdiction of, and agree that venue is proper in, the state courts located in San Francisco, California (USA) and the federal courts located in the Northern District of California (USA) in such legal action or proceeding. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than five thousand U.S. Dollars (US$ 5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) all arbitration proceedings shall be held in English; c) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. You acknowledge that any breach of this Agreement by you would cause irreparable injury to Blurb for which monetary damages would not be an adequate remedy and, therefore, Blurb will be entitled to seek injunctive relief (including specific performance) in any court of competent jurisdiction.
11.3 Severability; Language. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The parties of this Agreement have expressly required that the present Agreement be drawn up in the English language.
11.4 No Assignment. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Blurb’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
11.5 Export. You agree not to export, directly or indirectly, the Software, any U.S. technical data acquired from Blurb, or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
11.6 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12. International Provisions. The following provisions shall apply only if you are located in the countries listed below.
12.1 United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
12.2 Germany. Notwithstanding anything contrary in Section 9, Blurb is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).