Last updated: June 13, 2012
This is an Agreement between you and the retailer associated with this site (along with its parent, subsidiaries and affiliates, "Retailer", "us", "our" or "we") and covers all Digital Content provided to you through the Service. By using the Service or any Software, or accessing any Digital Content, you agree to be bound by the terms of this Agreement, and any additional terms provided on the Digital Site through which the Service is accessed (collectively with this Agreement, the "Service Agreements"). If you do not accept the terms of this Agreement, then you may not use the Service, any Software, or any Digital Content.
For the purposes of this Agreement:
"Charges" means the billing to you for Digital Content that you license.
"Content Provider" means the party offering Digital Content through the Service which may be Diamond, iVerse, or a third party;
"Customer" or "Customers" means you and other customers who license the Digital Content through the Service.
"Diamond Comic Distributors" or "Diamond" means Diamond Comic Distributors, Inc., a Maryland corporation.
Content" means digitized electronic content obtained for your personal use
through the Service, including, but not limited to, comics, magazines, graphic
novels, and other static and interactive electronic content. Digital Content
is accessible to Customers via an application provided through the Service or
via streaming through the Digital Site from which the Service was provided.
"Digital Site" means the website from which the Service is provided to you, which may be Retailer's website, Diamond's website or that of another Content Provider.
"iVerse" means iVerse Media, LLC, a Texas limited liability company.
"Service" means the provision of Digital Content, Software, and support and other services, if any and through whatever means, provided in connection with the Service.
"Software" means software (including any updates/upgrades to that software) provided in connection with the Service that permits Customers to shop for, license, download, browse, and/or use Digital Content, and any related documentation that may be provided.
2. Provision of the Service.
You may access the Digital Content through the Service as provided for in this Agreement and the Service Agreements.
The Service may be modified, suspended or discontinued in whole or in part, at any time upon our notice to you, which may be made via e-mail and by posting to the Digital Site.
3. Use of Digital Content and Usage Restrictions.
Upon your download of Digital Content and payment of applicable Charges (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on a reading application or as otherwise permitted as part of the Service, solely on the devices specified by use by the Retailer, and solely for your personal, non-commercial use, for however long the Digital Content is made available within the Diamond Digital system. Digital Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Digital Content. Those terms will also apply, but this Agreement will govern in the event of a conflict.
You are responsible for the following Usage Restrictions:
- You may not access or use the Services or any Digital Content through any technology or means other than those provided in the Service, or through other methods explicitly authorized by us or the Content Providers.
- You may not hide or mask your identity in connection with the use of the Service.
- You may not reverse engineer, decompile or otherwise attempt to extract the source code of the Service, Software or any part thereof, unless this is expressly permitted or required by applicable law;
- You may not modify, reorder, augment or manipulate search results in any way.
- You may not modify, replace, obscure, or otherwise hinder the functioning of links to the Digital Sites provided through the Service.
- You may not violate any policies or terms contained in this Agreement in any of the Service Agreements or violate other policies subsequently imposed in connection with the Service.
You agree that
you shall not:
- upload, post, transmit or otherwise make available any inappropriate, defamatory, obscene, or unlawful content via the Service or Software;
- upload, post, transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of the proprietary rights, or have the permission of the owner or other legal justification to use such content;
- upload, post, email, transmit or otherwise make available any other content, message, or communication prohibited by applicable law, the provisions of the Agreement, or any applicable additional Service policies or guidelines;
- impersonate another person or entity, or falsify or delete any author attributions or labels of the origin or source of Digital Content, or other material;
- restrict or inhibit any other user from using and enjoying the Service, including the Software and Digital Content or any other products of services provided through the Digital Site;
- delete, obscure, or in any manner alter any brand features, logos, warnings, notices (including but not limited to any copyright or other proprietary rights notices), or links that appear in the Service, including the Software or the Digital Content;
- interfere with or disrupt the Services, servers, or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or Digital Content or collect information about users for any unauthorized purpose;
- pre-fetch, cache, or store any Digital Content, except that you may store any content identifier or key that the documentation specifically permits you to store. For example, you may not use the Digital Content to create new or modified content or create an independent database.
- use the Service in a manner that gives you or any other person access to mass downloads or bulk feeds of any Digital Content.
- display content that falsely expresses or implies that such content is sponsored or endorsed by Retailer and/or the applicable Content Provider.
At our sole option, your rights under this Agreement will automatically terminate if you fail to comply with any provision of the Service Agreements. In case of such termination, you must cease all use of the Service and Software, and we may immediately revoke your access to the Service and to the Digital Content, without refund of any Charges. Neither we nor our Content Providers are liable for any claims relating to your inability to access the Service and/or Digital Content as a result of such termination. Failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any of our rights.
You are responsible for Charges occurring before your termination date.
5. Information Received.
The Software will provide us with data about your use of the Service, including records associated with Digital Content code redemptions. The Software will also provide us with information related to your use of the Digital Content (such as last page read and content archiving). Any information we receive is subject to the privacy notice at http://www.diamonddigital.com/public/privacypolicy. We have no control over any Digital Site or other website or medium that you use to access the Service, other than our Digital Site and we have no control over the business practices and policies of any third party Digital Sites or their operators. The privacy terms set forth in the our Digital Content privacy notice do not apply to the practices of any other companies or individuals. Please use caution and review the privacy policies of third party operators to learn more about their information-gathering practices. We expressly disclaim all responsibility or liability for the availability or accuracy of any Digital Site or other method of access that we do not own and operate, we do not endorse and we are not responsible or liable for any advertising, products or other materials on or available from such Digital Sites.6. Security
Password. YOU ARE RESPONSIBLE FOR THE CONFIDENTIALITY OF YOUR PASSWORD IN CONNECTION WITH THE SERVICE. Your password shall be confidential to you, as you are responsible for any and all transactions placed via the Service including by those to whom you have afforded access.
The security of your purchase codes created using the Service is your responsibility. You are solely responsible or liable for lost, stolen, misused, or misappropriated codes. You agree to notify us immediately if you believe your passwords or access codes have been obtained or used by an unauthorized person or entity. In addition, you agree to notify us immediately if you become aware of any breach or attempted breach of the security of a Digital Site or any website or other device that you use to license or access Digital Content.
Except as expressly provided in this Agreement, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign your access codes or passwords to any third party, and you may not remove or modify any proprietary notices or labels on the Digital Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Digital Content.
Neither we nor our Content Providers are not responsible for equipment failure, equipment compatibility or other problems beyond our and/or their control.
7. Disclaimer, Limits of Liability, Indemnity
You agree to hold harmless and indemnify us, Diamond, iVerse, all other Content Providers and our and their respective subsidiaries, affiliates, officers, agents, employees, licensors and suppliers, from and against any claim arising from or in any way related to your access or use of the Services, including the Software and Digital Content, including due to any violation of this Agreement or any other Service Agreement, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
Disclaimer of Warranties. ACCESS AND USE OF THE SERVICE, DIGITAL CONTENT, AND SOFTWARE IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION GIVEN BY US, DIAMOND, IVERSE OR ANY OTHER CONTENT PROVIDER CREATES A WARRANTY, AND THE SERVICE, DIGITAL CONTENT, AND SOFTWARE ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND WE, DIAMOND, IVERSE AND ALL OTHER CONTENT PROVIDERS AND OUR RESPECTIVE SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, SUCH AS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, NEITHER WE, DIAMOND, IVERSE OR OTHER CONTENT PROVIDERS OR OUR OR THEIR RESPECTIVE SUPPLIERS AND LICENSORS WILL BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY RELATED TO THE SERVICE, DIGITAL CONTENT, OR SOFTWARE, SUCH AS ANY DAMAGES ARISING OUT OF LOSS OF PROFITS, REVENUE, DATA, OR USE OF THE SERVICE, DIGITAL CONTENT, OR SOFTWARE OR ANY ASSOCIATED PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER WE NOR DIAMOND, IVERSE, NOR OTHER CONTENT PROVIDERS OR OUR OR THEIR RESPECTIVE SUPPLIERS AND LICENSORS, SHALL BE LIABLE WHATSOEVER FOR YOUR INABILITY TO ACCESS OR USE THE SERVICE, SOFTWARE OR DIGITAL CONTENT, FAILURE TO PLACE ACCURATE ORDERS, OR FOR UNAUTHORIZED USE OF ANY PASSWORD ASSIGNED TO YOU IN CONNECTION WITH THE SERVICE. IN ANY CASE, OUR AGGREGATE LIABILITY AND THAT OF DIAMOND, IVERSE OR ANY OTHER CONTENT PROVIDERS AND OUR AND THEIR RESPECTIVE SUPPLIERS AND LICENSORS UNDER THIS AGREEMENT WITH RESPECT TO ANY CLAIM RELATING TO USE OF THE SERVICE OR SOFTWARE OR LICENSING OF DIGITAL CONTENT IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR DIGITAL CONTENT THAT IS THE BASIS OF THE CLAIM. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You may not participate in any scheme that would be deemed fraud, credit card fraud or an attempt to license Digital Content with an intent to defraud, nor may you assist any third parties in doing so, whether successful in such efforts or not. If we determine, in our sole discretion, that you have participated in or allowed (by act or omission or any of the foregoing), we may (without limiting any other rights or remedies available to us) terminate this Agreement. Retailer, Diamond, iVerse and all other Content Providers disclaim any and all liability associated with fraudulent activities initiated or processed through your use of the Service.
You must undertake all measures to secure the payment methods you use in conjunction with this Service. In no instance and under no circumstances will we, Diamond, iVerse or any other Content Provider bear the risk of credit card fraud (i.e. fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with payment transactions via the Service.
Compliance with Law and Reservation of Rights. You agree to use the Service including the Software, and the Digital Content in compliance with the terms of the Service Agreements and all applicable laws. Neither the license of the Software or Digital Content transfers to you title to or ownership of the Software, any Digital Content or any intellectual property rights of Diamond, iVerse, any other Content Provider or their respective suppliers and licensors. All licenses are non-exclusive and all rights not expressly granted in this Agreement are reserved to us, Diamond, iVerse or other Content Providers and we, Diamond, iVerse or other Content Providers own or otherwise have all rights to all Software and Digital Content provided through the Service and the Service itself. We reserve the sole right and discretion to determine whether your use of the Service and Digital Content is in compliance with the Service Agreements. Diamond Digital is a branded service of Diamond Comic Distributors, Inc. and its distributors and licensors.
Export Regulations. You will comply with all applicable export and re-export restrictions and regulations, and you will not transfer, or encourage, assist, or authorize the transfer of Digital Content, or Software to a prohibited country or otherwise in violation of any such restrictions or regulations.
Governing Law. The laws of the state of Maryland, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise in connection with the Service Agreements and your use of the Service.
Authority. You represent that you are over the age of eighteen (18) and that you have full power, capacity and authority to accept these Terms.
Amendment. We may amend any of the terms of this Agreement and Attachments in our sole discretion by posting the revised terms on the applicable Digital Site. Your continued use of the Digital Content, Service, or Software after the effective date of any such amendment constitutes your agreement to be bound by such amendment.
Waiver, Severability And Claims. Our failure to exercise or enforce any right or provision of this Agreement will not be deemed to be a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Communications. Any questions regarding this Agreement should be directed to us at __________________.
Notices and Procedures for Making Claims of Copyright Infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to _________________.
We respect the intellectual property of others, and ask its users and visitors to do the same. We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying with the DMCA, we will act to remove or disable access to any material found to be infringing or found to be the subject of infringing activity and will act to remove or disable access to any reference or link to material or activity that is found to be infringing.
If you believe that your work has been copied in any way that constitutes copyright infringement, please provide all of the following information:
- a physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- a description of the copyrighted work that you claim has been infringed;
- a description of the material that you claim is infringing or is the subject of infringing activity, that it is to be removed or access to it disabled and information reasonably sufficient to enable us to locate the material on the Sites;
- your name, address, telephone number, email address and all other information reasonably sufficient to enable us to contact you;
- a statement by you that you have a good faith belief that use of the material as described by you is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the information in your notification is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices of copyright infringement should be directed to:
Diamond Comic Distributors, Inc.
1966 Greenspring Drive, Suite 300
Lutherville, Maryland 21093
Attn: Chief Operating Officer
IMPORTANT NOTE: THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING US THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS PRODUCT-RELATED QUESTIONS AND REQUESTS, OR QUESTIONS ON PRIVACY, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.