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BookTradeNow LLC
APPLICATION SERVICE PROVIDER AGREEMENT IMPORTANT – READ
THESE TERMS AND CONDITIONS CAREFULLY BEFORE PROCEEDING. BY
CHECKING “I AGREE” AND CLICKING “SUBMIT”, YOU ACKNOWLEDGE
THAT YOU ARE (I) AN INDIVIDUAL SEEKING TO USE BOOKTRADENOW
SERVICES FOR YOUR INDIVIDUAL, PRIVATE, NON-COMMERCIAL
BENEFIT ONLY; (II) AT LEAST 18 YEARS OF AGE; AND (III) DULY
AUTHORIZED TO ENTER INTO THIS APPLICATION SERVICE PROVIDER
AGREEMENT. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE READ THIS
APPLICATION SERVICE PROVIDER AGREEMENT, YOU UNDERSTAND IT,
AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF
AFTER READING THE TERMS AND CONDITIONS OF THIS APPLICATION
SERVICE PROVIDER AGREEMENT YOU DO NOT CONSENT, YOU SHOULD
EXIT THIS PAGE WITHOUT CHECKING “I AGREE” OR CLICKING
“SUBMIT”, AND YOU SHOULD IMMEDIATELY STOP ALL USE OF ANY
GOODS OR SERVICES PROVIDED BY BOOKTRADENOW, INC.
1. BookTradeNow Services.
This Application Service Provider Agreement (“Agreement”) is
entered into by and between you (“you”) and BookTradeNow LLC
a Texas corporation (“BookTradeNow”), as of the date upon
which you accept this Agreement through the means identified
above (the “Effective Date”). BookTradeNow agrees to provide
you with access to BookTradeNows’ textbook trading software
and updates, revisions and derivatives thereof, along with
all text, logos, sounds, videos or graphic images therein
(“Software”) through the BookTradeNow website
www.BookTradeNow.com, as may be offered from time to time
(“Site”). In consideration thereof, you agree to the terms
and conditions in this Agreement with regard to your use of
the Software, the Site, or any other services that
BookTradeNow may provide.
2. Software Description.
2.1. In General. The Software creates a forum for multiple
BookTradeNow members that have paid the BookTradeNow fee
(“Users”) wishing to purchase (as used herein, “Purchase”,
“Purchases”, “Purchased” and “Purchasing” all refer to
purchasing a textbook and sell (as used herein, “Sell”,
“Sells”, “Sale”, “Sold” and “Selling” all refer to selling a
textbook in exchange for a used textbooks. BookTradeNow
textbooks have no monetary value.
2.2. Sample Exchange. Member #1 wishing to trade a textbook
uses the BookTradeNow Software to list on the BookTradeNow
Site the textbooks Member #1 has available for trade. Member
#2 wishing to trade a textbook or textbooks uses
BookTradeNow Software to make known to Member #1 he or she
wishes to trade. If Member #1 seeks the Textbook title that
Member #2 wishes to trade, BookTradeNows’ Software helps
connect Member #1 with Member#2. In the event that Member #1
agrees to trade a textbook with Member #2 and ships such
textbook to Member #2, Member #1 agrees to trade and accept
delivery of that textbook from Member #2. Both Members use
BookTradeNows’ Software to affirmatively confirm
(“Confirmation”, or “Confirm”) such agreement. Upon
Confirmation, Member #1 and #2 have 72 hours to ship such
textbook (“Shipping Window”), at each others expense. After
Confirmation of such trade between both Members #1 and #2,
both Members will receive each others point of shipment
addresses. Once Members #1 and #2 receives each others
textbooks by shipping carrier, or face to face exchange, all
rights, title and interest in such textbooks passes to each
other Member.
3. IDs and Passwords.
BookTradeNow shall provide you with such user IDs and
passwords as may be necessary for you to access the
Software. You agree that all such user IDs and passwords are
the confidential information of BookTradeNow and shall be
maintained in strict confidence, and not disclosed to third
parties without BookTradeNows’ prior written authorization.
You are authorized to use the user IDs and passwords only
for accessing the Software for the Licensed Use (as defined
herein) and for no other purpose. You, at your own expense,
shall obtain, maintain and operate suitable and fully
compatible computer equipment, communication devices,
printers and related equipment, consumable items and
software, including Internet connections, required to access
and use the Software. You shall assume full responsibility
including expenses for remote connectivity necessary for the
transmission of data and to access and use the Software.
4. Grant of License; Use; Ownership; Use Restrictions and
Monitoring.
4.1. Grant of License. Subject to the terms and conditions
of this Agreement and any other agreements between the
parties, BookTradeNow grants to you a non-exclusive,
non-transferable, revocable license (“License”) to the
access and utilization of the Software.
4.2. Use. You may access the Software to make those uses
outlined in Section 2 above only (“Licensed Use”). This
Agreement does not convey to you any other interest in or
right to the Software. No form of remote access to
BookTradeNow computer system is permitted, other than as
specified herein, and as authorized by BookTradeNow from
time to time in connection with the Licensed Use. You will
have no right under this Agreement, whether or not
BookTradeNow is in breach of this or any other agreement, to
receive the source code for the Software.
4.3. Ownership. You agree that the Software, the Site, and
any other software or materials developed for the Licensed
Use (collectively, “Intellectual Property”) are proprietary
to BookTradeNow, and are protected by copyright, trademark,
trade secret, and other laws; and that the Intellectual
Property is the property of BookTradeNow and/or third party
licensors and all rights, title and interest in and to the
Intellectual Property, including without limitation all
copies, improvements, enhancements, modifications and
derivative works of or based on the Intellectual Property,
shall remain with BookTradeNow and/or such third party
licensors.
4.4. Use Restrictions. You agree not to (i) access, copy,
modify, rent, lease, sub-license, distribute, disclose,
time-share or use the Software, or any portion thereof,
except as expressly provided in this Agreement; (ii)
decompile, reverse engineer, disassemble, attempt to
disassemble, or otherwise reduce the Software to source code
or any other human-perceivable form; (iii) tamper with,
bypass, or alter any security feature of the Software, or of
BookTradeNows’ computer system; (iv) encumber or otherwise
transfer or attempt to transfer the License to a party not
authorized by BookTradeNow; (v) violate the terms and
conditions of this Agreement, the Terms of Use, the Privacy
Policy or the Disclaimer; or (vi) use the Software to
transmit any false, inaccurate, unlawful, or otherwise
objectionable material of any kind, including without
limitation, any material that encourages conduct that would
constitute a criminal offense, give rise to civil liability,
or otherwise violate any applicable local, state, national
or international law or standard or ethical practice in the
industry, or cause, permit or enable others to do so
(collectively, “Prohibited Conduct”). The determination of a
breach of this section shall be made in BookTradeNow sole
and subjective discretion.
4.5. Use Monitoring. Notwithstanding anything in this
Agreement to the contrary, BookTradeNow is not obligated to
monitor your or any other user’s use of the Software,
including any communications transmitted through the
Software; such responsibility rests solely with you, and you
indemnify and hold BookTradeNow harmless from any against
any harm or liability, including attorneys’ fees, arising
out of any such act or omission by you. BookTradeNow
reserves the right, at any time, to monitor, review, retain,
edit, delete and/or disclose any transmitted information as
it determines necessary, in its sole judgment. BookTradeNow
reserves the right to monitor your use of the Software and
to restrict or terminate your use of the Software in the
event BookTradeNow in its sole judgment suspects or
determines that (i) your use of the Software exceeds the use
that would be expected from a single Member; or (ii) you are
otherwise violating the terms and conditions of this
Agreement, the Terms of Use, the Privacy Policy or the
Disclaimer. BookTradeNow reserves the right to create
BookTradeNow-controlled Member, or Affiliate Entity accounts
for any purposes that BookTradeNow in its sole judgment
desires, including without limitation to monitor use or
performance of the Software or to purchase or sell
textbooks.
5. Fees.
This Section 5 applies to Members only.
5.1. Membership Fees. You shall prepay BookTradeNow a per
transaction fee (“Fee”), which is currently $3.99 per
Textbook listed on the users profile, in exchange for access
to the Software through the Site. BookTradeNow reserves the
right to change the Fee at any time without notice.
Non-payment of the Fees for any reason, including without
limitation BookTradeNow inability to effectuate an automatic
charge to your credit card or debit account, may result in
the termination, suspension or delay in your access to the
Software.
5.2. Shipping Fees. You are responsible for paying all
mailing and other shipping fees on any textbooks that you
send in conjunction with your use of the Software or any
other Intellectual Property.
5.3. Taxes. You shall be solely responsible for the payment
of any taxes, levies, assessments or similar charges
including, without limitation, any sales, use, excise or
other ad valorem taxes (collectively, “Taxes”) that may be
due based on your sale of textbooks through your use of the
Software, except for those Taxes based upon BookTradeNow
income.
6. Changes to This Agreement.
BookTradeNow may publish revisions, amendments or other
changes (collectively, “Changes”) to this Agreement from
time to time and will provide the Changes to you by means of
written notice (including via email), publication on-line in
connection with the Software and/or such other reasonable
means that BookTradeNow shall determine. Notwithstanding any
other provisions of this Agreement, your continued access of
the Software after written notice, publication on-line in
connection with the Software and/or such other reasonable
means that BookTradeNow shall determine, shall serve as your
agreement to abide by the Changes as if they were fully set
forth herein. The Changes shall be deemed to be incorporated
into this Agreement by this reference and you expressly
agree and warrant that access to and all usage of the
Software shall be in compliance with the Changes.
7. Your Representations and Warranties; Indemnification.
7.1. Your Actions. You represent and warrant that you will
be solely responsible for all of your acts, as well as all
acts under you control or allowance, including without
limitation all: (i) representations as to the title, ISBN,
description and condition of textbooks; (ii) representations
that textbooks will be shipped or have been shipped; (iii)
representations as to shipping and shipping confirmation for
textbooks; and (iv) all communications with other Members
with BookTradeNow. You agree and acknowledge that
BookTradeNow is not responsible or liable to anyone,
including without limitation you, any Member, or potential
user of the Software or any other party that may benefit
directly or indirectly from your use of the Software, for
your breach or anticipated breach of this Agreement.
7.2. Your Representations and Warranties. You further
represent and warrant that you shall: (i) not engage in any
Prohibited Conduct; (ii) have all right, title and interest
to dispose of any textbooks that you offer for Sale, Sell or
ship to Members or, and that such offering for Sale, Selling
and shipment does not violate any applicable laws or
regulations; (iii) have the full power and authority under
all laws and regulations to transmit and receive any and all
information that you may transmit and receive using the
Software; (iv) not, at any time, employ deceptive,
misleading or unethical practices that are or might be, in
BookTradeNow sole judgment, detrimental to BookTradeNow or
other Software users, including without limitation making
false, misleading or deceptive representations with regard
to any textbooks you may offer for sale, sell or receive
using the Software; (v) not infringe upon or cause the
infringement of, or otherwise violate, the rights of any
third party, including without limitation, any intellectual
property, contractual or fiduciary rights; and (vi) only use
BookTradeNow Services for your individual, private,
non-commercial benefit only.
7.3. Your Indemnification of BookTradeNow.
YOU WILL INDEMNIFY, DEFEND AND HOLD BOOKTRADENOW AND ITS
EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, AGENTS AND
SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “INDEMNIFIED
PARTIES”) HARMLESS AGAINST ANY AND ALL CLAIMS, LOSSES,
LIABILITIES, SUITS, COSTS, DAMAGES AND DISPUTES, INCLUDING
ATTORNEYS FEES, ARISING FROM OR IN CONNECTION WITH (I) YOUR
BREACH OF THIS AGREEMENT; (II) THE PROVISION OF OR CONTENT
OF ANY INFORMATION THAT YOU PROVIDE TO BOOKTRADENOW OR ANY
OTHER USER OF THE SOFTWARE; (III) YOUR USE OF ANY
INFORMATION PROVIDED TO YOU BY BOOKTRADENOW; OR (IV) YOUR
USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY THIRD
PARTY CLAIMS PERTAINING TO YOUR USE OF THE SOFTWARE.
8. BookTradeNow Limited Warranty; Disclaimer; Limitation
of Liability; Indemnification.
8.1. Limited Warranty.
BookTradeNow shall use reasonable commercial efforts to
maintain the availability of the Software during the term of
this Agreement, except for scheduled downtime, but does not
guarantee any specific level of availability.
8.2. Warranty Disclaimer.
WITH THE SOLE EXCEPTION OF THE LIMITED WARRANTY PROVIDED IN
THIS SECTION, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND TO YOU OR ANY THIRD
PARTY, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED
WARRANTIES (I) OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE; (II) OF INFORMATIONAL CONTENT OR
ACCURACY; (III) OF NON-INFRINGEMENT; (IV) OF QUIET
ENJOYMENT; (V) OF TITLE; (VI) THAT THE SOFTWARE, ALONG WITH
ANY THIRD-PARTY HARDWARE OR SOFTWARE USED IN CONJUNCTION
WITH THE SOFTWARE, WILL OPERATE ERROR FREE, OR IN AN
UNINTERRUPTED FASHION; (VII) THAT ANY DEFECTS OR ERRORS IN
THE SOFTWARE WILL BE CORRECTED; OR (VIII) THAT THE SOFTWARE
IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE
PLATFORM. EFFORTS BY BOOKTRADENOW TO MODIFY THE SOFTWARE
SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS.
8.3. Limitation Of Liability.
YOU ACKNOWLEDGE THAT THE OBLIGATIONS AND LIABILITIES OF THE
INDEMNIFIED PARTIES WITH RESPECT TO THE SOFTWARE ARE SOLELY
AS PROVIDED IN THIS AGREEMENT, AND THAT YOUR USE OF THE
SOFTWARE IS AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR THE
CONSEQUENCES OF ANY USE OF THE SOFTWARE, WHETHER OR NOT SUCH
USE WAS CONSISTENT WITH THE USE LICENSE GRANTED HEREUNDER.
YOU HEREBY RELEASE THE INDEMNIFIED PARTIES FROM ANY AND ALL
LIABILITY OF ANY KIND WHATSOEVER ARISING OUT OF YOUR USE OF
OR INABILITY TO ACCESS THE SOFTWARE, INCLUDING WITHOUT
LIMITATION ANY LIABILITY RELATING TO (I) YOUR RECEIPT OR
FAILURE TO RECEIVE TEXTBOOKS THAT WERE TO BE SHIPPED TO YOU
BY OTHER MEMBERS; (II) THE WRONG BOOKS BEING SHIPPED TO YOU
BY OTHER MEMBERS; (III) YOUR RECEIPT OF BOOKS THAT FAIL TO
MATCH THE CONDITIONS STATED BY OTHER MEMBERS, THE
DETERMINATION OF WHICH YOU ACKNOWLEDGE IS SUBJECTIVE; (IV)
YOUR DISAGREEMENT WITH THE VALUE ASSIGNED BY BOOKTRADENOW TO
ALL TEXTBOOKS; (V) THE LOSS OR DAMAGE IN SHIPMENT OF
TEXTBOOKS THAT WERE SHIPPED TO YOU BY OTHER MEMBERS; (VI)
ANY FEEDBACK PROVIDED TO YOU BY BOOKTRADENOW OR BY OTHER
MEMBERS; (VII) THE AVAILABILITY OR UNAVAILABILITY OF ANY
BOOK THAT YOU SEEK TO PURCHASE; (VIII) FRAUDULENT ACTS
AND/OR TRANSMISSIONS BY OTHER MEMBERS; AND (IX) THE CONTENT
OF ANY TEXTBOOKS, WHICH YOU MAY FIND OFFENSIVE AND/OR
INAPPROPRIATE, OVER WHICH YOU ACKNOWLEDGE THAT BOOKTRADENOW
HAS NO CONTROL. THE INDEMNIFIED PARTIES SHALL NOT BE LIABLE
TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF
USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER
UNDER THIS AGREEMENT, STATUTE, REGULATION, COMMON LAW
PRECEDENT OR DOCTRINE, OR OTHERWISE, EVEN IF THE INDEMNIFIED
PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
WAS NEGLIGENT. IN ANY EVENT, THE INDEMNIFIED PARTIES’
LIABILITY UNDER THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED
THE AMOUNT OF ANY FEES PAID BY YOU TO BOOKTRADENOW FOR USE
OF THE SOFTWARE PRIOR TO THE OCCURRENCE OF THE EVENT CAUSING
SUCH LIABILITY. IN JURISDICTION THAT PROHIBIT THE EXCLUSION
OR LIMITATION OF LIABILITY FOR CONSWQUENTIAL OR INCIDENTAL
DAMAGES, THE IDEMNIFIED PARTIES’ LIABILITY IS LIMITED TO THE
GREATEST EXTENT PERMITED BY THE LAW.
9. Term and Termination.
9.1. Term. This Agreement shall commence upon the Effective
Date.
9.2. Termination. This Agreement may be terminated at any
time by either party. In the event you elect to terminate
this Agreement, you shall not be entitled to a prorated
refund for the remainder, if any.
9.3. Post-Termination. Upon the termination or expiration of
this Agreement for any reason, BookTradeNow provision of the
Software, and your access to and use of the Software, shall
automatically cease, and BookTradeNow may disable any and
all user IDs and passwords provided to you. Termination or
expiration will not affect any rights, obligations or
liabilities that arose prior to such termination or
expiration.
10. General.
10.1. Assignment. You may not assign this Agreement without
the prior written consent of BookTradeNow. Subject to the
foregoing/ this Agreement shall be binding upon and inure to
the benefit of the parties/ their successors and permitted
assigns.
10.2. Viewing Outside the United States. BookTradeNow makes
no claims that the Services may be lawfully viewed or
accessed outside the United States. Access to the Services
may not be legal by certain persons or in certain countries.
If you access the Services from outside of the United
States, you do so at your own risk and you are responsible
for compliance with the laws of your jurisdiction.
10.3. Amendment. This Agreement may not be amended or
modified except by BookTradeNow in accordance with this
Agreement. If any provision of this License Agreement is
held to be unenforceable for any reason, such provision
shall be reformed only to the extent necessary to make it
enforceable, and such decision shall not affect the
enforceability (i) of such provision under other
circumstances, or (ii) of the remaining provisions hereof
under all circumstances.
10.4. No Agency. Nothing in this Agreement shall be deemed
to establish an agency, partnership, joint venture,
association or employment relationship between you and
BookTradeNow.
10.5. Waiver. Notwithstanding any course of dealing or the
failure to strictly enforce this Agreement, no term, right
or condition hereof shall be deemed waived and no breach
excused, unless such waiver and consent shall be in writing
and signed by BookTradeNow. No waiver of any breach shall
constitute a waiver of any other breach.
10.6. All references to currency and/or cash in this
agreement are to United States dollars.
10.7. Survival. Sections 4.3, 4.4, 5, 7, 8 and 10 shall
survive termination of this Agreement.
10.8. Jurisdiction and Venue.
THIS AGREEMENT IS ENTERED INTO AND GRANTED IN THE STATE OF
TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY LAW OR
CONFLICT OF LAW PRINCIPLE THAT WOULD APPLY THE LAW OF
ANOTHER JURISDICTION. EXCLUSIVE JURISDICTION FOR ANY
DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT SHALL BE ONLY IN THE FEDERAL
OR STATE COURT WITH COMPETENT JURISDICTION LOCATED IN SAN
ANTONIO, TEXAS. USER CONSENTS TO THE EXERCISE OF PERSONAL
JURISDICTION BY SUCH COURTS IN ANY SUCH ACTION. BY ACCESSING
THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS
OF THIS LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS
TERMS. BY CHECKING “I AGREE” AND CLICKING “SUBMIT”, YOU
ACKNOWLEDGE THAT YOU ARE DULY AUTHORIZED TO ENTER INTO THIS
LICENSE AGREEMENT.
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