Article 1 Validity of these conditions
- These conditions will apply to all negotiations, offers, quotations, agreements and other (legal) acts entered into by Instant Magazine B.V. (hereinafter: “IM”), having its registered office in Amsterdam, the Netherlands.
- The client's assignment and/or licence acquisition will be deemed to constitute acceptance of IM's general conditions.
- Any special provisions, derogating from IM's conditions, will be binding only if agreed in writing.
- IM expressly rejects the applicability of any general conditions of the client.
- In the event of conflict between a provision in one or more agreements entered into between IM and the client and the General Conditions, the provisions of the agreement or agreements will prevail.
- If and to the extent that any provision of the General Conditions, or any part of a provision, is declared null and void or is nullified, the other provisions, or the other part of the null and void, or nullified, provision, of the General Conditions will remain in full force and effect. In such event IM and the client will consult on a new provision to replace the null and void/nullified provision, observing the purport of the null and void/nullified provision to the extent possible.
- These General Conditions will supersede any previously applicable General Conditions.
Article 2 Offers
- Any offers and/or quotations will be subject to contract, unless expressly stated otherwise, and based on the information provided in respect of enquiries, if any. Such offers and/or quotations will not become binding until after signing of the agreement.
- Agreements, and additions or amendments to agreements, will not become binding until after written confirmation by a member of the management of IM. Any communications by other staff members of IM will not be binding on it.
- Quotations by IM will be valid for the term indicated in the quotation. If no term has been indicated, the quotation will be valid until 30 days after the date of issue of the quotation.
- Unless expressly for internal purposes, offers by way of budgets, quotations, price lists or other records may not be reproduced or submitted to third parties for inspection.
Article 3 Delivery or completion periods
- Unless otherwise agreed in writing, the term of the agreement for the use of the software shall be for a fixed period of twelve (12) months. The Agreement shall automatically renew for an additional fixed period of twelve (12) months on the expiration date of the initial term, and on each successive anniversary date thereafter, unless either party gives written notice to the other party two months prior to expiry of the term.
- Any delivery or completion periods stated will be estimates only. The delivery or completion periods have been established based on the expectation that there will be no obstacles for IM to perform the services or to undertake the work.
- If IM is unable to perform its obligations in good time, IM will promptly notify the client, stating the expected period by which the said delivery or completion period will be exceeded.
Article 4 Contract variations
- Any written or oral changes to the original assignment, of any nature whatsoever, made by or on behalf of the client, that may lead to higher costs than could be counted on at the time of the quotation, will be charged to the client as additional costs.
Article 5 Subcontracting
- The client authorizes IM to cause a third party to be designated by it to perform the work at a time to be designated by it.
Article 6 Liability
- IM will not be liable for any costs, damage and interest that may arise as a direct or indirect result of:
- force majeure, as described in further detail below;
- any acts or omissions on the part of the client, its subordinates, or any other persons deployed by or on behalf of it;
- any errors and/or defects in a design that were not discovered by the client at the time of approval of the relevant design.
- In no event will IM be liable to compensate any trading loss and/or consequential damage suffered by a client. Trading loss and/or consequential loss will include, but not limited to, all and any damage or loss that is the result of the not, or not fully, being available of the website, the magazine or the application, damage due to the loss or temporary non- availability of data, damage as a result of third-party claims against the contractor on any basis whatsoever.
- The client will indemnify IM against any third-party claims in respect of infringement of such parties’ patent, trademark or copyrights (or any other intellectual property rights), wrongful act or default, as a result of or in connection with the agreement.
- In no event will IM be liable for damage of any nature whatsoever caused by third-party hacking.
- IM will not be liable for any viruses etc. causing damage to hardware or software of IM and/or the client.
- IM will maintain its own software, which is hosted on one or more server locations. The content of the website, the magazine and the application will be divided over various servers to limit the risks of failure to the extent possible and to warrant as high an uptime as possible. In no event will IM be liable for damage of any nature whatsoever caused by server downtime or the website, the magazine or the application being offline or inaccessible.
- In the event that, despite the provisions of this article 6, IM is still liable vis-à-vis the client, such liability will at all times be limited to the amount owed by the client under the agreement in respect of licence costs for one year.
Article 7 Responsible use
- The client accepts full responsibility for the content and use of the website, the magazine or the application.
- IM reserves the right, in the event of violation of the General Conditions, to disable the website, the magazine or the application either temporarily or permanently.
- The client grants IM consent to access the website, the magazine or the application at any time - without any prior written consent being required - for the purpose of technical support, the performance or maintenance work, or to verify that the use is in accordance with what has been agreed.
- The client will be fully responsible in respect of the access data and any direct or indirect consequences of unauthorized use. The client will ensure that the logins and passwords remain strictly confidential.
Article 8 Force majeure
- IM will not be deemed to be in default if the client is already in default in the performance of its obligation or in the event of force majeure on the part of IM.
Article 9 Intellectual and/or industrial property rights
- All intellectual property rights in the template, source code, designs, images, texts, etc., provided by IM, will vest in - and remain vested in - IM.
- The materials referred to in paragraph 1 of this article may be used by the client only for the agreed purpose. Any use outside the web environment of IM is not permitted. IM will be entitled to file an additional claim if the client uses, or wishes to use, the relevant services for any other purpose or allows third parties to use them. For any act in violation of this provision the client will forfeit a flat-rate penalty in the amount of EUR 5,000, without prejudice to IM's right to claim full damages.
- IM will be entitled to autograph its items or cause its name to be stated in the colophon, in rolling credits, or otherwise in the magazine published, provided in the usual manner.
- IM will be entitled to use any magazines published by the client for its own promotional and/or publicity purposes.
- IM also reserves the right to use the increased knowledge as a result of the performance of the services for other purposes, to the extent that this will not cause any confidential information to be disclosed to third parties.
- The client is and will remain the owner of the intellectual property rights in content added by the client, such as designs, images, texts, drawings, etc.
Article 10 Software licence
- The client will acquire a licence to use the website, the magazine and/or the application and the associated content management system. The licence will only apply to use by the client itself. Use of the licence by third parties will be permitted only with the prior written consent of IM.
- The client can use the login name and password provided by IM to access a management account with which the client can use the application.
- Furthermore, the client will have access to the IM support desk to the extent necessary. The agreement will state the level of support.
- The client will at all times remain responsible for the content of the magazines published by it.
- IM is entitled to take magazines offline without further notice in case of suspected infringements of third party rights or in case of prosecutable content.
- The magazines published will remain visible and online throughout the term of the agreement between the client and IM. After termination of the agreement, IM will not be under any obligation to retain information of any nature whatsoever. The published and unpublished magazines and other information will be removed, unless agreed otherwise in writing.
- The available bandwidth for the magazines is limited by a Fair Use Policy. In the event of excessive data traffic - all at IM's sole discretion - IM may take technical or other measures. Excessive data traffic will in any event be deemed to exist if the use has been five times the average of similar clients with the same type of licence for a period of 14 days.
- In the event that IM establishes excessive data traffic as referred to in paragraph 10-7 it will – in addition to taking technical or other measures, if any – charge the client EUR 0.15 per GB. Such charge will be subject to the payment periods, etc. as referred to in article 13 of these General Conditions.
Article 11 Confidentiality
- Either party will be under the obligation to keep secret all confidential information obtained from the other party or from another source in the course of their agreement. Information will be deemed to be confidential if the other party has communicated its confidential nature of if such confidentiality ensues from the nature of the information.
Article 12 Default and dissolution
- In the event of failure on the part of the client to perform any obligation whatsoever, it will be in default in that respect without any notice of default being required. Without prejudice to the provisions of the Dutch Civil Code [Burgerlijk Wetboek], IM will also be entitled to suspend the agreement entered into, or to consider all or part of such agreement dissolved, without any judicial intervention being required, all at IM's option, and to render the magazines offline without any further notice being required.
- IM will also have the rights referred to in paragraph 1 of this article if the client is declared bankrupt, or its bankruptcy is filed for, if the client has applied for, or been granted, a moratorium on payment of its debts, if the client's immovable property has been attached, its business is wound up or is, or has been, taken over by one or more third parties, or if the client intends to leave the Netherlands to take up residence elsewhere. In all such events all the claims that IM has against the client will be immediately due and payable.
Article 13 Payment
- If payment in instalments has been agreed, each instalment is to be paid 14 days after the day of despatch by IM of the relevant instalment invoice to the client, unless agreed otherwise in writing.
- Payment is to be made within 14 days of submission of the invoice, unless agreed otherwise in writing.
- Furthermore, IM will be entitled, in addition to the principal sum and interest, to claim compensation by the client of all judicial and extrajudicial costs incurred as a result of non- payment or late payment, including the costs of lawyers, legal counsel, attorneys, bailiffs and collection agencies.
- The extrajudicial costs will amount to 15% of the principal sum, increased by interest, subject to a minimum of EUR 35.
Article 14 Miscellaneous
- All negotiations, offers, quotations, agreements and other (legal) acts between IM and the client will be governed by the laws of the Netherlands, irrespective of the place where the agreement is performed. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) is expressly waived.
- Any disputes between IM and the client as a result of, or in relation to, negotiations, offers, quotations, agreements and other (legal) acts will be submitted to the exclusive jurisdiction of the competent judge with the District Court for North Holland, including its preliminary relief judge.
Article 1 Applicability and Validity of the Terms
- These Terms apply to all offers of Instant Magazine Inc. (“IM”) and govern the use of the Services, the relationship and any agreements between IM and Customers.
- No other terms and conditions than these Terms shall be binding upon IM, unless accepted by it in writing. IM expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind IM. In the event of a conflict between the Terms and a provision in one or more Agreements entered into between IM and the Customer, the provisions of the Agreement(s) will prevail.
Article 2 Offers
- Any offers by IM are non-binding and can be revoked at any time unless IM expressly stated otherwise in writing.
- Offers by IM will be valid for the term indicated in the offer. If no term has been indicated, the offer will be valid for 30 days after the offer’s date of issue.
- Any additions or amendments to an offer by IM shall entail a new offer, automatically revoking the previous offer. Any additions or amendments to an offer by a third party shall be deemed a new offer which IM management may accept or reject in its sole discretion.
- Offers will only be deemed accepted by IM if it does so in writing.
- Offers, quotations, price lists or other records may not be reproduced or submitted to third parties for inspection without IM’s prior written consent.
Article 3 Registration
- To be able to start using the Services, an Account has to be opened as instructed by IM and one has to register to become a user. Only upon receipt of written (email) confirmation by IM, a party becomes a “User”.
- A party must provide accurate and complete registration information and keep this information up to date. It is not allowed to: (i) use a false name or an email address owned or controlled by another person; and (ii) use as a User Name a name subject to any third-party rights, without appropriate authorization. Customer shall be responsible for maintaining the confidentiality of the password and Customer is fully responsible for all activities that occur under its User Name and password. Any User Name and password is for use of the Customer only. Customer agrees to immediately notify IM of any unauthorized use of its User Name and/or password, and must undertake immediate and effective measures to limit any possible misuse, including changing the password.
- IM reserves the right to change the login procedure, the password and/or the User Name, at its sole discretion. Customer will be informed of such changes by email, at the email address provided at the time of registration.
- The Customer will be fully responsible for the confidentiality of its User Name and password and any direct or indirect consequences of unauthorized use. The Customer will ensure that the User Name and password remains strictly confidential.
Article 4 The Service
- IM has the right, at its sole discretion and with prior notification to Customer, to limit or interrupt use of the Services, fully or partly, for the purpose of upgrading or maintenance of any part of the Services. In addition, IM has the right, without any prior notification, to make procedural and technical modifications and/or improvements to the Services or any feature used by means of the Services, as communicated via the Website.
- IM is entitled to engage the services of third parties for the execution of an Agreement.
- The Customer accepts full responsibility for their use of the Website and the Services.
- IM reserves the right, in the event of violation of the Terms and/or the Agreement, to disable the Website and/or access to the Services either temporarily or permanently.
- The Customer grants IM consent to access Customer’s account at any time - without any prior written consent required - for the purpose of technical support, the performance of maintenance work, or to verify that the use is in compliance with the Agreement and these Terms.
- Customer shall not, nor will enable and/or allow third parties – to: (i) copy, modify, translate, or reverse engineer any part of, or any feature used by means of, the Services; (ii) remove any copyright, trademark or other proprietary rights notices; (iii) use any robot, spider, other automated device, or manual process to monitor or copy any part of, or any feature used by means of, the Services; (iv) collect any information about other Customers (including user names and/or email addresses); (v) reformat or frame any portion of the web pages that are part of the Website; (vi) create user accounts by automated means or under false or fraudulent pretenses; (vii) create or transmit unwanted electronic communications such as spam to other Customers, or otherwise interfere with other Customers enjoyment of the Services; (viii) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (ix) use the Services to violate the security of any computer network, crack passwords or security encryption codes; (x) copy or store any content offered on or via the Website or the Services, for anything other than its own use; (xi) use any device, software or routine that interferes with the proper working of any part of, or any feature used by means of, the Services, or otherwise attempt to interfere with the proper working of any part of, or any feature used by means of the Services ; (xii) take any action that imposes, or may impose in IM’s sole discretion, an unreasonable or disproportionately large load on IM’s IT infrastructure; or (xiii) use any part of, or any feature used by means of, the Services, intentionally or unintentionally, to violate any applicable local, state, national or international law.
- With respect to paragraph 6(xii) above, the available bandwidth for the Magazines is limited by IM’s fair use policy. In the event of excessive data traffic – to be determined in IM's sole discretion - IM may take technical or other measures.
- In the event that IM determines there has been excessive data traffic it will – in addition to taking technical or other measures, if any – charge the Customer [$0.15USD] per GB of data used during the period of excessive data traffic. Such charge will be subject to the payment periods, etc. as referred to in article 10 of these Terms.
Article 5 Delivery or completion periods
- Any delivery or completion periods stated will be estimates only. The delivery or completion periods have been established based on the expectation that there will be no obstacles for IM to perform the Services or to undertake the work.
- If IM is unable to perform its obligations by the delivery date/completion period, IM will promptly notify the Customer, stating the expected period by which the said delivery or completion period will be exceeded.
Article 6 Liability
- CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL CONTENT, DATA AND ACTIVITIES CONDUCTED THROUGH OR VIA THE SERVICE, OR ANY PART OR FEATURE THEREOF, BY OR ON BEHALF OF CUSTOMER, EVEN IF SUCH ACTIVITIES WERE TO OCCUR WITHOUT CUSTOMER’S PERMISSION.
- IN NO EVENT SHALL IM, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
- NOTWITHSTANDING ANYTHING ELSE AGREED IN WRITING WITH CUSTOMER, IM’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO IM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT CAUSING THE DAMAGES.
- THE LIMITATIONS ON LIABILITY ABOVE SHALL APPLY WHETHER OR NOT A PARTY, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
- CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD IM, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE SERVICES BY CUSTOMER, OR CUSTOMER’S BREACH OF THE AGREEMENT AND/OR THESE TERMS. THE OBLIGATIONS IN THIS ARTICLE 6 INCLUDE, BUT ARE NOT LIMITED TO, CLAIMS THAT CONTENT POSTED AND/OR MADE AVAILABLE BY OR ON BEHALF OF CUSTOMER, INFRINGES UPON THE RIGHTS OF THIRD PARTIES, OR IS OTHERWISE UNLAWFUL.
- IF THE SERVICES OR ANY PART THEREOF BECOME OR IN IM’S OPINION IS LIKELY TO BECOME THE SUBJECT OF A SUIT OR CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, IM MAY, AT ITS OPTION AND SOLE EXPENSE: (I) OBTAIN THE RIGHT FOR CUSTOMER TO USE THE INFRINGING PRODUCTS AND SERVICES OR (II) REPLACE OR MODIFY THE SERVICES SO THAT IT BECOMES NON-INFRINGING WITHOUT ANY REDUCTION IN FUNCTIONALITY.
- Notwithstanding any other provision herein or in the Agreement, IM is never liable for: (i) any damage of whatever nature suffered by Customer due to the fact that the Services are temporarily unavailable, or temporarily unavailable in its proper or complete form; (ii) any damage of whatever nature suffered by Customer in connection with Customer’s, IM’s or third parties’ internet connections; (iii) damages resulting from content used or created via the Services, that has not been stored, sent or received in a proper, complete or timely manner.
Article 7 Intellectual Property Rights and License
- Customer understands and agrees that IM (or its licensors) own all legal right, title and interest in and to the Services, and any and all parts thereof, including parts and features used by means of the Services, such as the Website, the source code, designs, templates, and the Know How, including any Intellectual Property Rights, whether or not registered, and wherever in the world those rights may exist, but excluding any Customer generate content. Customer further understands and agrees that the Services may contain information which is designated confidential by IM, and that it may not disclose such information without IM’s prior written consent.
- IM will be entitled to include its trade name, trademark, and/or logo on any of its Services or to cause its trade name, trademark or logo to be included in the colophon, rolling credits, or otherwise, in any Magazine published by the Customer.
- IM reserves the right to use any Magazines published by the Customer for its own promotional and/or publicity purposes.
- The Customer is and will remain the owner of the Intellectual Property Rights in all content added by the Customer, such as designs, images, texts, drawings, etc.
- Subject to the conditions set forth in the Agreement and these Terms, IM grants the Customer a limited, personal, irrevocable, nonexclusive, non-sub-licensable, non-transferable right to use the Services. Customer is entitled to publish its Magazine within the scope of the Services and these Terms.
- Use of the Customer’s license by third parties will be permitted only with the prior written consent of IM.
- Furthermore, the Customer will have access to the IM support desk to the extent necessary. The Agreement will determine the level of support available to Customer.
- The Customer will at all times remain responsible for the content of the Magazines published by it, and IM will be under no obligation to review any Customer content.
- IM is entitled to remove a Magazine without notice in cases of suspected infringement of rights of third parties or criminal content.
- Published Magazines will remain visible and online throughout the term of the Agreement. After termination of the Agreement, IM will not be under any obligation to retain any information of any nature. The published and unpublished Magazines and other information will be removed, unless agreed otherwise in writing.
Article 8 Confidentiality
- Confidential Information means (i) the existence and terms of any agreement between the Parties and (ii) any non-public, confidential or proprietary information relating to a disclosing Party, whether or not technical in nature, including any that is designated by the disclosing Party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving Party; (ii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving Party at the time of disclosure by the disclosing Party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing Party; or (v) is developed independently and separately by either Party without use of the disclosing Party’s Confidential Information.
- Each Party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other Party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other Party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing Party’s prior written consent, which consent may be granted or withheld in such Party’s sole and absolute discretion.
- Each Party agrees that it will restrict the circle of employees or third parties it retains who have access to the other Party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms and Conditions.
- Immediately following the receipt of a written request to this effect by the disclosing Party the receiving Party will return any and all Confidential Information received from the disclosing Party or destroy such Confidential Information, if the disclosing Party so requests.
Article 9 Default and Termination
- Unless otherwise agreed in writing, the term of the Agreement for the use of the Software shall be for a fixed period of twelve (12) months. The Agreement shall automatically renew for an additional fixed period of twelve (12) months on the expiration date of the initial term, and on each successive anniversary date thereafter, unless a party gives written notice to the other party sixty (60) days prior to expiry of the term.
- IM and Customer may terminate an Agreement, or IM may suspend performance thereunder at any time, including performance of, or access to any part of the Services, (i) if either Party breaches an Agreement or these Terms, which breach was not cured within five (5) days of written notice of such breach by the other Party; (ii) if either Party reasonably suspects that Customer is breaching the law or infringes third party rights; (iii) for a force majeure event that continues for more than thirty (30) days upon written notice; (iv) if Customer fails to pay any amounts due to IM; (v) if required due to change in laws/regulation by a regulator or authority with a lawful mandate; (vi) if either Party’s bankruptcy has been applied for; (vii) an attachment is levied on either Party’s goods; (viii) either Party’s business is liquidated or discontinued; and/or (ix) either Party violated any applicable law or regulation.
- If Customer believes that IM has failed to perform under the Agreement or the Services are defective, Customer must notify IM in writing and allow ten (10) days for IM to cure the defect. If IM cures the defect within this cure period, IM will not be in default and cannot be held liable for any damages and/or losses in connection with such default. If IM has not cured the defect within this cure period, Customer may terminate the Agreement with immediate effect, upon written notice to IM, and is entitled to a pro-rated refund of any pre-paid fees.
- Upon termination of the Agreement for any reason whatsoever, the Customer’s license to use the Services will end immediately and access to the Services will be terminated immediately. Upon termination IM may immediately deactivate the Account and remove all Magazines or content related to the Account. After termination IM will not be required to provide any information, material and/or Magazine to the Customer and/or to convert the same.
Article 10 Payment
- Payment is to be made within 14 days of an invoice’s date of issue, unless otherwise agreed to in writing.
- If payment in installments has been agreed, each installment is to be paid 14 days after the date of issue of the relevant installment invoice to the Customer, unless otherwise agreed to in writing.
- Furthermore, IM will be entitled, in addition to the principal sum and interest, to claim reimbursement by the Customer for all judicial and extrajudicial costs incurred as a result of non- payment or late payment, including the costs of lawyers, legal counsel, attorneys, bailiffs and collection agencies. Any extrajudicial costs incurred shall be equal to 15% of the outstanding principal and interest, subject to a minimum of $50.
- Any written or oral changes to the Agreement, of any nature whatsoever, made by or on behalf of the Customer, that may lead to higher costs than could be counted on at the time of the quotation, will be charged to the Customer as additional costs.
Article 11 Warranty
- Customer accepts and agrees that the Services provide only the functionality and other properties provided by the Services at the time of use. Except as otherwise set forth in these Terms, the Services are provided on an “as is” basis. Use of the Services is at the Customer’s own risk. IM expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, and any other warranty that might arise under any law. Without limiting the foregoing, IM makes no representations or warranties that the Services will be uninterrupted or error-free. In case of any interruption of Services, IM will have the obligation to undertake any and all actions commercially and reasonably available to cure such interruption, as set forth in the Service Level Agreement, which is the exclusive and only remedy available in case of interruption of Services.
- IM hereby warrants that it is the owner of the Services and/or has the right to grant to Customer the license to use the Services as set forth in the Agreement without violating the rights of any third party, has good title thereto.
Article 12 Applicable Law and Jurisdiction
- Unless stated otherwise in writing, the Agreement, the Terms, and the Services and any and all Agreements between Customer and IM, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York in any dispute arising under these Terms.
Article 13 Miscellaneous
- If and to the extent that any provision of the Terms, or any part of a provision, is declared null and void or is nullified, the other provisions, or the other part of the null and void, or nullified, provision, of the Terms will remain in full force and effect. In such event IM and the Customer will consult on a new provision to replace the null and void/nullified provision, observing the purpose of the null and void/nullified provision to the extent possible.
- The failure to exercise, or delay in exercising, a right, power or remedy shall not constitute a waiver of that right, power or remedy. If either Party waives a breach of any provision of these Terms, this shall not operate as a waiver of a subsequent breach of that provision or as a waiver of a breach of any other provision.
- The Agreement, these Terms, and any agreement with Customer is for Customer’s sole benefit, and except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person other than Customer any legal or equitable rights thereunder.
- Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. IM is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
- Customer understands and agrees that IM shall suffer irreparable injury in case of breach of the obligations under Article 7. Accordingly, in the event of such breach, Customer understands and agrees that IM will be entitled to seek injunctive relief in any federal court of competent jurisdiction within the County of New York, State of New York.
- All terms and conditions of the Agreement and these Terms, which are destined (whether expressed or not) to survive the duration or termination of this Agreement, shall so survive, which includes, but is not limited to Articles 6, 7, 9 and 12 of these Terms.
Article 14 Definitions
The following terms shall have the meaning assigned below; terms denoting the singular number, include the plural and vice versa, and may be used in these Terms and Conditions (“Terms”) both in a singular or plural format, both formats referring to the same definition hereunder; words denoting one gender include the other gender:
- Agreement: shall mean the agreement between the Customer and IM, which refers to these Terms, to access and use the Services via an Account.
- Customer: shall mean any natural person or business entity with whom IM and its employees deal in the course of its business, including representative(s), agent(s), successor(s) visitors of the IM Website, and persons with access to an Account.
- Database: the personal and other related data of its Customers collected by IM.
- IM: shall mean Instant Magazine Inc.
- Intellectual Property Rights: all intellectual property rights and related rights, such as copyrights, trademarks, patent rights, design rights, trade secrets and know how, trade names, and all other proprietary right arising or enforceable under any United States federal or state law, rule or regulation, or non-United States law, rule or regulation or international treaty.
- Know How: all information and knowledge regarding the Services, in particular regarding the ability to create a Magazine by means of IM’s software.
- Magazine: a digital magazine or brochure with content provided by the Customer which was created using the Services.
- Notification: the notification by any person, that content published using the Services might infringe Intellectual Property Rights, other third party rights, and/or might be violating applicable statutes or laws.
- Party or Parties: shall mean IM and Customer, individually or collectively.
- Services: the service that IM provides to Customers by means of which its Customers can create, process, manage, aggregate, publish and/or distribute content to the public at large; the Services include use of the Website and IM’s software for the creation of Magazines.
- User Name: the name or alias provided by the Customer during the registration procedure. Usually the Customer’s e-mail address.
- Website: the www.InstantMagazine.com Website, including all its subdomains and cloud platform services, by means of which the Services can be used.