|
The following terms and conditions govern the relationship between you and Esque Services, Inc. for use of the Esqueproofbooks.com web site. By indicating your acceptance of these terms and conditions you agree to be bound by and adhere to these terms and conditions and you agree that Esque Services, Inc. can enforce these terms and conditions against you.
Esque Services, Inc. has developed and owns or has access to certain software and associated hardware designed for use by you for ordering professional quality proof books of your images. Such software and hardware, including any applicable Downloads, shall be known as the System.
You agree to use the System only for the creation of proof books. You will not use the System to create photo albums or other books or products that contain design elements, backgrounds, or other images. The decision of Esque Services, Inc., or its designee, shall be final as to whether or not your submitted images qualify as a proof book or not. You agree to use the System to select your layout, create your proof book, pay for the same and then submit it for approval or rejection.
If your proof book is rejected then your PayPal account will be credited with a refund less a review fee of $10.
Esque Services, Inc. grants to you a non-exclusive, non-transferable, non-resalable license to access and to use the System, which includes any Downloads, to upload your images, select your layout, printing and delivery options and make payment for your proof books over the internet. You may begin your access by signing up on this web site after your agree to these terms and conditions. Your access to the System shall be to the version of the System made available from time to time by Esque Services, Inc.
To operate the System, you must download, as directed by the System, certain software and associated coding (“Downloads”) allowing you to properly interface with and operate the System. You agree to download and use such Downloads only for use with the System. You do not acquire ownership of the Downloads. All software and coding owned by Esque Services, Inc. that is part of the Downloads shall be a part of the System and is only licensed to you and your rights in it shall be governed by the License Grant above and by these terms and conditions. Part of the Downloads may be open source code and you shall be bound by any use or other restrictions applicable to such open source code.
The License granted to you is restricted to use by you in your business for your images to create proof books and subject to all limitations as to band width, size of storage, access of the System, System activity and all other limitations currently or in the future imposed by Esque Services, Inc., in its sole discretion. You shall not: (a) make available or distribute all or part of the System to any third party by assignment, sublicense, transfer or any other attempted transfer; (b) copy, adapt, modify, create derivative works, reverse engineer, decompile, disassemble, or change, in whole or in part, any of the System; (c) use the System to operate in or as a time-sharing, outsourcing, or service bureau environment, or in any way allow any third party to use the System for their images (d) allow other persons other than you and your employees to access the System or manage your account; (e) operate the System or attempt to operate the System outside of the limitations imposed by Esque Services, Inc.; (f) allow any third party to do any action that you are prohibited from doing by these terms and conditions; or (g) attempt to get around or avoid any password, time lock or other access protection system used by the System.
Esque Services, Inc. is the owner or an authorized user of the System and you do not acquire any rights of ownership to the System or Downloads under these terms and conditions. You agree that all development, inventions and creations of any type or character relating to the System and Downloads belong to Esque Services, Inc., even if you participated in creating the same.
You agree to pay to Esque Services, Inc. the charges for all proof books that you order using the System along with all applicable shipping and taxes as calculated by the System. The System requires you to pay for your proof books, including applicable shipping, handling and taxes, using the PayPal payment system, accessible at paypal.com. You are responsible for creating and maintaining an account with PayPal to make payment for your proof books. If Esque Services, Inc., for any reason, does not receive valid payment from PayPal for your proof books, then you agree to immediately pay to Esque Services, Inc. all of the charges for your proof books.
You represent that you own all images that you upload to the System, that you have all rights necessary to allow creation of the proof books that you order and that no other person or entity has any interest, copyright or otherwise, in such images or proof books. You grant to Esque Services, Inc. and its designee the right to store, resize, display, copy, print, and create derivative works from such images for the purpose of operating the System and creating the proof books you order, including but not limited to archival and backup of the System.
The images that you upload to the System will be stored on the System only for as long as Esque Services, Inc. needs such images to complete processing of your order for proof books. After such time Esque Services, Inc. may, at its option and without any notice to you, delete or cause to be deleted any or all of such images from the System. You agree that you will maintain separate and apart from the System all images that you upload to the System for such time and using such media as you alone select and determine. Esque Services, Inc. has no obligation to keep, store, maintain, backup or archive your images, even those you upload to the System. Esque Services, Inc. has no liability to you for the deletion of any images that you upload to the System.
"Confidential Information", shall mean the System, its software, documentation and materials. You acknowledge the confidential and proprietary nature of the Confidential Information and agree that you will not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity.
Esque Services, Inc. warrants that the proof books made for you will be free from defects in material and workmanship and that the System when available and when accessed and properly used will provide the features and functionality in the then current version of the System. The foregoing warranty is in effect as of the date of this Agreement and continues during the Term of this Agreement. THE FOREGOING WARRANTY IS EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR ANY WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE. This Exclusion may be modified by applicable Law and if so then this Exclusion shall be so limited. You agree that access to, availability of and performance of the internet is not controlled by either party and that Esque Services, Inc. does not guarantee that the System will always be available over the internet or that you will always be able to access the System, no warranty is made as to accessibility, up time, or performance of the System. As your sole remedy and Esque Services, Inc.'s sole obligation for breach of any of the foregoing warranties or breach of these terms and conditions Esque Services, Inc., LLC shall at its option either repair or replace the defective proof book or repair or replace the incorrect or non-functioning part of the System. Esque Services, Inc.'s obligations under the foregoing warranty shall be conditioned upon the following: (a) it receiving from you prompt notice of the alleged breach, in no event later than 60 days after delivery of the proof book to you; (b) your return of the defective proof book, if applicable; and (c) you cooperating fully in evaluation and repair of the issue.
"Force Majeure" means an event or circumstance not reasonably foreseeable and not within the control of either party that prevents, or renders so difficult as to be commercially impracticable, performance by either party of its obligations hereunder, including but not limited to labor shortages, fire, flood, tornado, wars, acts of God, terrorism, delays in material supply, equipment breakdown, transportation delays, embargoes, strikes and labor disputes. If a party's performance under this Agreement is prevented, restricted, or interfered with by reason of a force majeure, the party will be excused from such performance to the extent of such force majeure (except for your payment obligations, which are not to be affected by force majeure).
Other than the warranty contained in these terms and conditions Esque Services, Inc. shall not be responsible for any damages, of any type, arising under any legal theory, tort, contract or out of the System, or from the proof books or these terms and conditions or any use of the System. In no event will Esque Services, Inc. be liable for nor shall you have a remedy for the recovery of any special, indirect, incidental or consequential damages, including but not limited to lost profits, loss of goodwill, work stoppage, computer failure or malfunction, loss of data, or other commercial damage, even if you have advised the possibility of them. In no event shall Esque Services, Inc.'s obligation to you for all claims under the warranty, under these terms and conditions, arising from the proof book or relating to the System or use of the System exceed the amount paid by you for the proof book in the order involved.
You shall indemnify, defend and hold Esque Services, Inc. harmless from any and all claims, damages, costs and expenses of any type, including but not limited to reasonable attorneys fees, that arise from any use of the System by you or from any claim arising out of use of the images that you upload to the System, including but not limited to claims of copyright infringement involving the images or the proof books.
Your right to use the System may be terminated at any time for any reason by Esque Services, Inc.
These terms and conditions will be construed under the laws of the State of Kansas except for its conflicts of law provisions.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. |
