Terms and Conditions
General Terms and Conditions
Version 2.0 26th January 2011.
Please read the following general Terms and Conditions carefully as the provisions contained herein govern your access or use of, and your purchase through or in connection with, the Website.
IF YOU ARE READING THIS AS A CHILD OR STUDENT BELOW 18 YEARS OLD, YOU MUST HAVE PERMISSION FROM YOUR PARENT OR LEGAL GUARDIAN TO ACCESS AND USE THIS WEBSITE.
In addition to these general Terms and Conditions:
A. Certain users who desire to become an editor, sub-editor or nominated individual (collectively, "Editor") of their yearbook must agree with the Editor Responsibilities Agreement which is accessible below the General Terms and conditions. Click here to view the Editor Responsibility Agreement now. An Editor must also agree to both terms and conditions of which are hereby incorporated into these General Terms and Conditions by this reference.
1. PURPOSE OF THE WEBSITE
1.1 The main purpose of the Website is to allow groups of students or individuals from the same schools, colleges, universities, training organisations and all other types of organisations ("Yearbook Group") to create yearbooks ("Yearbook") by using the yearbook creation services ("Yearbook Creation Services") available on the Website.
1.2 Each Yearbook Group comprises of an Editor(s) and an unlimited number of individuals making up the Yearbook Group's members (" Yearbook Group Members"). The Yearbook Group Members are permitted access to their Yearbook Group within the Website through an access code supplied by the Editor.
1.3 The Yearbook produced and published by a Yearbook Group shall be printed by the Provider through the Website's printing service (" Printing Service"). In addition, the Printing Service allows an Editor to print various articles of clothing and other gift items or mementos customised to its Yearbook Group ("Customised Items"). All Yearbooks and Customised Items printed by the Provider are offered for sale to each of the Yearbook Group Members and/or any other third parties (being, a "Purchaser").
2. ACCEPTANCE OF TERMS
2.1 The Website is owned and operated by Yearbook Machine Limited and/or its associates, related parties, successors and assigns (collectively referred to as "Provider", "us", "we" or "our").
(a) any persons viewing or otherwise accessing the Website ("Visitor");
(b) any persons becoming a registered user of the Website by becoming an Editor, a Yearbook Group Member or a Purchaser, or by submitting or providing information or data to the Provider to enable the Provider to respond to such person's queries or for any other purposes ("Registered User "); and
(c) any persons who is a parent or legal guardian of a child or student aged below 18 ("Minor") wishing to access or use the Website, and who is agreeing to the T&C in his or her capacity as parent or legal guardian ("Guardian"). All Guardians of Minors who are Registered Users are also deemed to be Registered Users in their own capacity by this reference.
All such persons are collectively referred to as "User", "you" or "your".
2.3 By becoming a User, you hereby acknowledge and agree to be bound by the T&C. This version represents the most current version of the T&C.
3.1 In consideration of your becoming a User, you represent and warrant that:
(a) you are 18 years of age or older;
(b) you are under 18 years of age but have the permission of your parent or legal guardian.
(c) you have the capacity to form a binding contract;
(d) you are not a person barred from accessing or using the Website under the governing laws of the T&C; and
(e) your access or use of the Website does not violate any applicable law or regulation.
4. DESCRIPTION OF WEBSITE
4.1 The Website offers the following services (collectively, "Services"):
(a) Yearbook Creation Services: such services comprise:
(i) Editing Service: reserved solely for Editors, the service allows Editors to:
i. create, edit and customise their Yearbooks to any preferred design and layout;
ii. manage the content, and impose editorial or submission guidelines and policies, in respect of the Yearbooks; and
iii. receive from, and send private messages to, each Yearbook Group Member;
(ii) Profile Service: the service allows Editors to provide Yearbook Group Members with an access code for the purposes of creating profiles for their Yearbook. Each Yearbook Group Member may create, edit and update their profiles and upload their own photographs or images using the Profile Service;
(iii) Supplementary Services: other services available as part of the Yearbook Creation Services include the following:
i. Photographs page, allowing Editors and Yearbook Group Members to submit further photographs, images, illustrations and other types of prints for inclusion in their Yearbook;
ii. Page tracker, allowing Editors to manage the number, position and layout of Yearbook pages, and allowing Yearbook Group Members to post suggestions to the Editor for various pages to be included in, or excluded from, their Yearbooks;
iii. Polls page, allowing Editors to post various poll questions, and Yearbook Group Members to participate in such polls, for the purposes of including the same in their Yearbooks;
iv. Yearbook tracker, allowing Editors and Yearbook Group Members to track the progress of the creation of their Yearbooks, and allowing Yearbook Group Members to place a reservation on the printed version of their Yearbook;
v. Discussion forum page, allowing Editors and Yearbook Group Members to post various discussion topics relating to, or in connection with, their Yearbooks;
(b) Printing Service: a service allowing Editors to print Yearbooks and Customised Items through or in connection with the Website;
(c) Online Purchase Facility: a facility allowing Editors to offer their Yearbooks and Customised Items for sale to Yearbook Group Members and other third parties.
4.2 The Services may further include certain communications from the Provider and/or its licensors, such as service announcements and administrative messages. These communications are made to Registered Users and Guardians of Minors who are Registered Users, and are considered part of the terms of registration of the Website.
4.3 Unless explicitly stated otherwise, any new services, features, content or applications offered or made available from time to time by the Provider through or in connection with the Website shall be subject to the T&C.
5. WEBSITE CONTENT AND PROPRIETARY MATERIAL
5.1 In ACCESSING THE WEBSITE, you expressly acknowledge, agree AND COVENANT that:
(a) the Website contains information, data, text, photographs, pictures, images, graphics, video, messages or other materials ("Content") posted or submitted by Registered Users, part of which may be proprietary to the User and/or its licensors that is protected by applicable intellectual property and other laws;
(b) except to the extent otherwise specifically authorised by the Provider and/or the author or creator of the relevant Content, you may not copy, modify, translate, publicise, reproduce, exploit, broadcast, transmit, distribute, perform, display or sell any of, or any portion of, the Website or all Content contained therein, or create any derivative works thereof, and you may not use any of the Content in connection with any commercial endeavours, whether in whole or in part;
(c) except to the extent otherwise specifically authorised by the Provider and/or the author or creator of the relevant Content, you may only retrieve, display and use the Content solely for your personal use;
(d) the Content is the sole responsibility of the person from which such Content originated, as approved, edited or modified by an Editor. The Provider does not control the Content posted through or in connection with the Website and, as such, does not in any way guarantee the accuracy, integrity or quality of such Content;
(e) by accessing the Website, you may be exposed to Content that may be offensive or objectionable. Under no circumstances will the Provider be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available through or in connection with the Services;
(f) the Website may also include Content posted or distributed by the Provider, including from time to time, help topics, FAQs, articles, information and/or any other messages. The information and opinions expressed in the Provider's Content are the Provider's or author's own personal views and description, and are provided for information purposes only. Under no circumstances are such Content intended for any business or commercial-related, income-related or employment-related purposes or activities, including but not limited to any selling or purchasing purposes or activities. You are not entitled to rely and/or act upon such Content and/or use them as a basis for any cause of action in law or otherwise.
(g) the Website is offered, supplied and provided on an "as-is" and "as available" basis, and the Provider assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any User communications or personalised settings;
(h) the Provider expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to:
(i) any warranty of merchantability, fitness for a particular purpose and non-infringement in respect of your access and use of the Website or the Services, or your purchase of any Yearbook or Item through or in connection with the Website; or
(ii) any warranty in respect of the results procured from the use of the Services.
(i) you are responsible for obtaining access to the Website and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees and in addition, you must provide and are responsible for all equipment necessary to access the Website;
(j) you understand that the Website may include software embodied therein now or in the future ("Software") as well as security components that permit digital materials to be protected, and that your access of the Website is subject to Software usage rules set by the Provider and/or its licensors. The Provider makes no warranty that any errors in the Software will be corrected;
(k) you may not:
(i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or data transmitted through the Website;
(ii) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other Users are able to type, or otherwise act in a manner that negatively affects other Users' ability to engage in real time exchanges;
(iii) interfere with or disrupt the Website or servers or networks connected to the Website or disobey any requirements, procedures, policies or regulations of networks connected thereof;
(iv) take any action that places an unusually large load on the infrastructure of the Website, or bandwidth connecting to the Website, or take any action that includes the use of any data accumulation, tool, robot or spider to compile, disseminate, extract, process, monitor or copy any web pages;
(v) intentionally or unintentionally violate any applicable local, state, national or international law;
(vi) "stalk" or otherwise harass another; or
(vii) collect or store personal data about other Users; and
(viii) attempt to override or circumvent any of the usage rules embedded into the Software or those provided herein. Any unauthorised reproduction, publication, further distribution or public exhibition of the Website or all Content contained therein, in whole or in part, is strictly prohibited.
5.2 You further acknowledge that the Provider does not pre-screen Content and that any Content downloaded or otherwise obtained through the Website is done at your own discretion and risk. You will solely be responsible for any damage to your computer system or loss of data that results from the download of the same.
5.3 No advice or information, whether oral or written, obtained by you from the Provider or through or from the Website shall create any warranty not expressly stated in the T&C.
6. DEALINGS WITH OTHER USERS AND CONTENTS OF YEARBOOKS
6.1 As part of the Editing Service and the Supplementary Services, other Users, including Editors and other Registered Users (collectively, " Other Users") may interact or communicate with you by posting or uploading responses, comments, suggestions, feedbacks, messages, articles or any other types of communications on or through or in connection with the Website.
6.2 Additionally, if you are a Yearbook Group Member, or if you are the Purchaser of a Yearbook, the ER Agreement entered into by and between the Provider and the applicable Editor expressly provides:
(a) that all editing, publishing and sale responsibilities and obligations for, or in connection with, the applicable Yearbook, including any and all content and offers for sale of the Yearbook or any Customised Items, remain with the Editor; and
(b) that the Provider disclaims any such responsibilities and obligations where the Yearbook is concerned.
6.3 Accordingly, the Provider DOES NOT IN ANY WAY endorse, approve or control the Contents posted, uploaded or communicated by any Other Users, and the editing publication of any Yearbook or its contents therein.
6.4 Your correspondence or dealings with the Other Users, or participation in a Yearbook, including submission of your Profile, purchase of a Yearbook or Customised Items from an Editor and any other terms, conditions, warranties or representations associated with such correspondence and dealings, are solely between you and such Other User or Editor respectively.
6.5 Nothing in the T&C constitutes a joint venture, partnership, agency or other fiduciary relationship between the Provider and an Editor or any other Users.
7. EXCLUSION OF LIABILITY
7.1 You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss or profits, goodwill, use, data or other intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from:
(a) the accessing of, or the inability to access, the Website, or the use of, or the inability to use, the Website or the Services;
(b) unauthorised access to or alteration of your transmissions or data;
(c) any other matter relating to the Website or the Services; and
(d) any dealings or communications with any Other Users, including Editors.
8.1 You agree to indemnify and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your:
(a) access and use of the Website or the Services;
(b) connection to the Website;
(c) violation of this T&C;
(d) violation of any rights of another; or
(e) dealings and communications with Other Users.
9. REGISTERED USERS - ACCOUNT, ACCESS CODE OR PASSWORD AND SECURITY
9.1 If you become a Registered User as an Editor or a Purchaser, you will receive a password and account designation upon completing the Website's registration process. If you become a Registered User as a Yearbook Group Member, you will receive an access code from your Yearbook's Editor.
9.2 You are responsible for maintaining the confidentiality of the password and account, and/or access code, and are fully responsible for all activities that occur under the same.
9.3 You agree to:
(b) immediately notify the Provider of any unauthorised use of your password or account, and/or access code, or any other breach of security; and
(c) ensure that you exit from your account at the end of each session.
9.4 The Provider cannot and will not be liable for any loss or damage arising from your failure to comply with this Clause.
10. REGISTERED USERS - CONTENT OR DATA INPUT
10.1 As a Registered User, you are solely and entirely responsible for any and all Content that you upload, post, email, transmit or otherwise make available through or in connection with the Website, as edited, approved or modified by an Editor, where applicable.
10.2 IN SUBMITING YOUR CONTENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU SHALL NOT UPLOAD, POST, EMAIL, TRANSMIT OR OTHERWISE MAKE AVAILABLE THROUGH OR IN CONNECTION WITH THE WEBSITE:
(a) any Content that is false, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(c) any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(d) any Content comprising unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
(e) any Content containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
(f) any Content purporting to impersonate any other person or entity, including, but not limited to, any other User, the Provider's official, employee, consultant, guide, host or any other representative, or falsely state or otherwise misrepresent your affiliation with any person or entity.
10.3 If you are a Yearbook Group Member, and your Content is intended to be included in a Yearbook, you may be required to submit such Content within the printing deadline established by the Editor of your Yearbook. You expressly acknowledge and agree that the Provider shall be in no way liable to you or any other third parties for any errors or omissions from any Yearbook arising as a result of, or in connection with, your failure to submit such Content within the said deadline.
10.4 You also expressly acknowledge and agree that the Provider:
(a) shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content that is available through or in connection with the Website; and
(b) may access, preserve, and disclose all Content supplied by you if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
(i) comply with legal process;
(ii) enforce this T&C;
(iii) respond to your requests for customer service; and
(iv) protect the rights, property, or personal safety of the Website, other Users and/or the public.
10.5 You understand that the technical processing and transmission of all Content submitted by you may involve:
(a) transmissions over various networks; and
(b) changes to conform and adapt to technical requirements of connecting networks or devices.
10.6 The Provider does not claim ownership of any Content you submit. However, with respect to such Content, you grant the Provider the following worldwide, sub-licensable, perpetual, transferable, royalty free and non-exclusive licence ("Licence") to use, distribute, reproduce, modify, adapt, publicly display the Content on the Website, in whole or in part, and to incorporate the Content into any proprietary works of the Provider in any format or medium now known or later developed for any purposes, including for the purposes of:
(a) providing and promoting specific Website initiatives;
(b) compiling statistical references for improvement of the Website or any Services offered by the Provider through or in connection with the Website, or any of its affiliates or third parties; and
(c) subject to prior written notification to you, any other commercial or non-commercial ventures of the Provider.
11. SPECIAL ADMONITION FOR INTERNATIONAL USE
11.1 Recognising the global nature of the Internet, you agree to comply with the provisions of the T&C in accordance with its governing law. If you access the Website from outside of the United Kingdom, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
12.1 The YEARBOOK MACHINE name, logo, other names and logos of the Provider as may be created, produced or used from time to time (" Marks") are trademarks or registered trademarks of the Provider and its affiliated companies. Without express and written prior permission, you agree not to display or use in any manner the Marks for any purpose whatsoever.
- GENERAL PRACTICES REGARDING USE AND STORAGE
13.1 You expressly acknowledge and agree that:
(a) the Provider may establish general practices and limits concerning use of the Website, including without limitation the maximum number of days and months that Content submitted by you will be retained by the Website, the maximum amount of information that may be submitted by you and the maximum number of times and the maximum duration for which you may access the Services in a given period of time;
(b) the Provider has no responsibility or liability for the deletion or failure to store any descriptions, work, portfolio, profile, or other information or communication posted by you, or obtained or procured from or through the use of the Services; and
(c) the Provider reserves the right to modify these general practices and limits from time to time.
- MODIFICATIONS TO THE WEBSITE ETC
14.1 The Provider reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or any part thereof, including the provision of any Services, with or without notice. You agree that the Provider shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Website.
15. SUSPENSION AND TERMINATION
15.1 You agree that the Provider may, under certain circumstances and without prior notice, suspend or immediately terminate your access to the Website, bar any further use of the Services and remove any associated profiles, works, information or contact details thereof.
15.2 Cause for such suspension or termination shall include, but not be limited to:
(ii) requests by law enforcement or other government agencies;
(iii) discontinuance of the Website (or any part thereof); and
(iv) unexpected technical or security issues or problems.
15.3 You agree that all suspensions or terminations for cause shall be made at the Provider's sole discretion and that the Provider shall not be liable to you or any third party for any such termination.
16. OFF SITE LINKS
16.1 The Website may provide, or third parties may provide, links to other Websites or resources.
16.2 You understand and acknowledge the Provider has no control over such sites and resources. In this respect, you also acknowledge and agree that the Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources.
16.3 You further acknowledge and agree that the Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
- EMAIL POLICY
17.1 We will not respond unless required to do so by law to any electronic mail ("Email") sent to us which contains threatening, abusive, malicious, pornographic, obscene, defamatory or otherwise illegal or inappropriate material. We reserve the right to take such action as we in our sole discretion deem fit in respect of such material.
17.2 All Emails received will be taken to be submitted, where appropriate, for publication, free of charge. If you wish to negotiate a fee for the publication of your exclusive material you should email us at email@example.com and state your name, address and, if applicable, a contact telephone number, in your Email. Your Email should clearly state that the material contained in the Email has been submitted for the purposes of negotiating a fee for the publication of that material. It must not be sent to any other email address or to a User or to any other third party.
17.3 We will not disclose any personal information under any circumstances of any staff, employee, contractor or worker of the Provider and/or the Provider's associates. Where appropriate we will endeavour to respond to all Emails within 3 days of receipt, but we cannot and do not guarantee to respond to any Emails. Subject to any applicable statutory provisions, all Emails will generally be stored until such time they are no longer required by the Provider. Any Email sent to the incorrect destination is liable to be deleted immediately.
19. NO THIRD PARTY BENEFICIARIES
19.1 You agree that, except as otherwise expressly provided in this T&C, there shall be no third party beneficiaries to this T&C, and that you may not assign your profile or registration to any other persons.
20.1 If you choose to provide us with a nominated email address, unless you expressly inform us otherwise, the Provider may communicate with you by providing you with notices regarding updates, changes or additions to this Website or the Services.
- GOVERNING LAW
21.1 This T&C and any non-contractual obligations arising out of or in relation to the T&C shall be governed by and construed in accordance with the laws of England and Wales.
22.1 You understand, agree and acknowledge that the courts of England and Wales are to have non-exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims and disputes relating to any non-contractual obligations) which may arise out of or in connection with the T&C and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.
- ENTIRE AGREEMENT
23.1 The T&C constitute the entire agreement between you and the Provider and govern your access and use of, or purchase through or in connection with, the Website, superseding any prior agreements between you and the Provider.
23.2 You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services of the Provider, affiliated services, third-party content or third-party software.
24. WAIVER AND SEVERABILITY OF TERMS
24.1 The failure of the Provider to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision.
24.2 If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect.
25. VIOLATIONS AND INFRINGEMENTS
25.1 Any violations or infringement of the T&C should promptly be reported by the User by emailing the Provider at firstname.lastname@example.org.
As the Editor, you are advised to read the terms and conditions contained in this Agreement carefully as they govern your obligations relating to the publication of the Yearbook.
In becoming a yearbook editor, you agree to the Editor Responsibility Agreement, as outlined below.
TERMS AND CONDITIONS
1.1 This Agreement is made by and between Yearbook Machine Limited (Company No. 06710032), a company registered under the laws of England, whose registered office is at [Unit 8, 11 Plough Yard, London, EC2A 5LP] and/or its associates, related parties, successors and assigns (collectively referred to as Provider) and either the School OR the Nominated Individual, whichever is applicable (Editor ).
2. Definitions and Interpretation
2.1 In this Agreement, the following words have the following meanings:
(a) Editor means either:
(i) the School, where the School accepts responsibility of the publication and printing of the Yearbook or Yearbooks; or
(ii) the Nominated Individual, where the School does not accept such responsibility;
(b) General Terms and Conditions mean the general terms and conditions of the Website found at [www.yearbookmachine.com/terms] as updated from time to time;
(c) Materials mean text, data, articles, photographs, images, references, resources and/or any other materials posted on the Website, or submitted by any Yearbook Group Member for inclusion in a Yearbook;
(d) Nominated Individual means the individual nominated as editor of the Yearbook or Yearbooks in lieu of the School, and whose details are specified in Part A of the table set out on page 1 of this Agreement;
(e) School means the school, college or university named in Part B of the table set out on page 1 of this Agreement;
(f) Services means any service provided by the Provider through or in connection with the Website;
(g) Yearbook means the yearbook or yearbooks created by a Yearbook Group, as listed on Part B of the table set out on page 1 of this Agreement, using the Services of the Provider offered through or in connection with the Website;
(h) Yearbook Group means the group specified in Part B of the table set out on page 1 of this Agreement, being the group of individuals who:
(i) have registered a profile on the Website in respect of a Yearbook as an Editor or a Yearbook Group Member; or
(ii) are participating, in any other way, in the creation or update of a Yearbook; or
(iii) have submitted materials or articles to be included in a Yearbook;
(i) Yearbook Group Member means a member of the Yearbook Group;
(j) Website means the website of the Provider www.yearbookmachine.com.
3. Scope of Agreement
3.1 This Agreement covers the content, quality, production and publication of the Yearbook created by a Yearbook Group through or in connection with the Website.
3.2 This Agreement is supplementary to the General Terms and Conditions and the provisions herein are incorporated into the General Terms and Conditions by this reference.
4. Editor Responsibilities and Obligations
4.1 For each Yearbook created, the Editor hereby acknowledges and agrees that it shall be responsible for the Yearbook in its entirety, including:
(a) the online access and use of the Website by any Yearbook Group Member;
(b) the content of any Materials posted or submitted in respect of any Yearbook;
(c) the layout, design or format of any Materials or any Yearbook;
(d) the length of any Materials or any Yearbook; and
(e) the production, publishing or printing of any Yearbook.
4.2 Without limiting the generality of the foregoing, the Editor hereby acknowledges and agrees that it shall be responsible for all of the following:
(a) participation, or refusal of participation, of any and all Yearbook Group Members;
(b) access or refusal of access of the Website, or use or non-use of the Services, by any and all Yearbook Group Members;
(c) development and implementation of a Yearbook's editorial policy or guidelines;
(d) responding to any queries or issues raised by any Yearbook Group Member in relation to a Yearbook;
(e) determination of the appropriateness of Materials posted on the Website or submitted by a Yearbook Group Member through or in connection with the Services, including:
(i) Materials which are false, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(ii) Materials in which the Yearbook Group Member does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(iii) Materials which infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(iv) Materials which comprise unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; and
(v) Materials which purport to impersonate any other person or entity;
(f) assisting Yearbook Group Members to develop and improve on Material content, layout or otherwise, including improvements relating to grammar and form;
(g) ensuring completeness and accuracy of all Materials submitted in respect of a Yearbook;
(h) determination and implementation of Material submission schedules and Yearbook printing deadlines;
(i) determination of style guidelines, including design, layout and format of the Yearbook; and
(j) liaising or communicating with the Provider in relation to a Yearbook.
4.3 In addition to, and without limiting clauses 4.1 and 4.2, the Editor hereby acknowledges and agrees that it shall be responsible for:
(a) consenting to, and approval of, the printing of each Yearbook by the Provider; and
(i) placing an order for and on behalf of the Yearbook Group for the printed Yearbook or Yearbooks;
(ii) payment of all amounts due and owing to the Provider in respect of the printed Yearbook or Yearbooks; and
(iii) accepting delivery of the printed Yearbook or Yearbooks,
in accordance with the provisions of the General Terms and Conditions.
5. Exclusion of Liability and Indemnity
5.1 To the fullest extent of the law, the Provider expressly disclaims all conditions, warranties, representations, liabilities and obligations of any kind, whether express or implied, including, but not limited to:
(a) the participation or non-participation of any Yearbook Group Member;
(b) the access or non-access of the Website, or the use or non-use of the Services, by any Yearbook Group Member;
(c) any communications or failure to communicate with any Yearbook Group Member;
(d) the appropriateness, content, completeness or accuracy of any Materials contained in any Yearbook;
(e) any submission or non-submission of any Materials in respect of any Yearbook;
(f) any errors or omissions contained in, or any publication or printing, or non-publication or printing of, any Yearbook;
(g) any errors or omissions contained in any orders placed by the Editor under clause 4.3 in respect of a Yearbook; and
(h) any failure to pay or accept delivery of any Yearbook so ordered.
5.2 You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of your failure to comply with any obligations contained in this Agreement.
5.3 Subject to the other provisions of this clause herein, if for any reason the Provider is held to be liable to you in relation any of the aforesaid, the extent of the Provider's total liability shall be limited to:
(a) the supply of a new or replacement Yearbook or Yearbooks;
(b) the supply of services or products of equal value; or
(c) the refund of the amount paid for any Yearbook or Yearbooks purchased by the Editor.
6. Intellectual Property Rights
6.1 Copyright in each Material contained in a Yearbook shall be owned by its author. In accordance with the provisions of the General Terms and Conditions, each author shall grant the Provider a worldwide, sub-licensable, perpetual, transferable, royalty free and non-exclusive licence to use, distribute, reproduce, modify, adapt, publicly display any Materials posted on the Website or submitted to the Provider, in whole or in part, and to incorporate such Materials into any proprietary works of the Provider in any format or medium now known or later developed for any purposes, including for the purposes of:
(a) providing and promoting specific Website initiatives;
(b) compiling statistical references for improvement of the Website or any Services offered by the Provider through or in connection with the Website, or any of its affiliates or third parties; and
(c) subject to prior written consent of the author, any other commercial or non-commercial ventures of the Provider.
6.2 To the extent that the provisions of the General Terms and Conditions do not govern any Material contained in any Yearbook, the Editor hereby acknowledges and agrees that the Editor shall, at the request of the Provider, cause the author of such Material to execute such reasonable agreements as may be required to ensure that the author grants similar rights to that granted by authors under the General Terms and Conditions.
6.3 All other intellectual property rights, title and interests created or embodied in a Yearbook shall be the property of the Provider to the full extent of the law, including all rights to use, publish, modify, reproduce, adapt, exhibit, display, print or advertise in any medium whatsoever known or unknown at this time and to copy, assign or licence all such intellectual property rights, title and interests to others for any commercial or non-commercial purposes as the Provider deems fit.
7. Dispute Resolution
7.1 Disputes or differences arising between the Editor and the Provider in relation to this Agreement must preferably be settled quickly and by negotiation.
7.2 The parties hereby agree to determine any unresolved disputes by way of amicable agreement between the Editor and an employee of a senior management level of Provider.
7.3 If the parties cannot resolve such dispute within thirty (30) days of when the dispute is first raised by either or both the parties, the parties agree that the dispute should be referred to an external consultant or advisor who specialises in the resolution of Editor/client disputes. Any decision made by the external consultant or advisor shall be final and binding on the parties.
7.4 All costs, charges and expenses incurred as a result of the parties' use of the external consultant or advisor shall be borne by the parties equally.
7.5 The parties agree to adhere to the procedures set out in this clause before enforcing any other rights permitted by law in the resolution of any disputes under this Agreement.
8.1 A party notifying or giving notice under this Agreement must give notice:
(a) in writing;
(b) with respect to the Provider, to the postal address specified in clause 1 or or to the email address email@example.com, or any other address as notified in writing by the Provider to the Editor from time to time;
(c) with respect to the Editor, to the postal address, fax number or email address specified in Part A of the table on page 1 of this Agreement, or any other address as notified in writing by the Editor to the Provider from time to time.
8.2 A notice given in accordance with this clause is received:
(a) if left at the recipient's address, on the date of delivery;
(b) if sent by prepaid post, four (4) days after the date of posting;
(c) if sent by fax, when the sender's facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and
(d) if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient's, mail server within five (5) days after the date of the email.
9.1 The Editor must not in any way assign, dispose or in any way otherwise relinquish possession or control of all or any part of its obligations under this Agreement without the prior written approval of the Provider.
9.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any provision contained in this Agreement.
10. Entire Agreement
10.1 This Agreement shall represent the entire agreement between the parties and supersedes all previous agreements, terms, conditions, representations or claims which may have been made or agreed upon between the parties as to the subject matter.
10.2 This Agreement may not be amended unless such amendments are made in writing and signed by both parties.
11. Governing Law
11.1 This Agreement shall be governed exclusively by the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales.
12. Waiver and Severability of Terms
12.1 The failure of the Provider to exercise or enforce any right or provision under this letter shall not constitute a waiver of such right or provision.
12.2 If any part of this Agreement is or becomes unenforceable, it may be severed and will not invalidate the remainder of this Agreement.