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Last updated: 02/03/2008
The terms and conditions set forth below apply to all visitors ("Users" or "you") to this website (this "Site"), which is hosted by Essay Match, LLC ("Essay Match"), and constitute a binding, legal agreement (this "Agreement") between you and Essay Match. Pursuant to this Agreement, Essay Match will provide certain services to persons wishing to sell their works of authorship and persons interested in buying such works (the "Services"), and Users will grant certain rights to Essay Match that enable Essay Match to effectively provide the Services.
There are several categories of persons that may access this Site. Users that upload essays, information, data, or other materials ("Materials") for sale by such Users are referred to individually as an "Author" or collectively as "Authors". Users that license Materials from Authors on this Site are referred to as "Licensing Users". Users that have violated the terms of this Agreement and/or are prohibited from using this Site are referred to as "Prohibited Users".
1. USER REGISTRATION
Prior to posting Materials on this Site or licensing Materials from Authors, Users must register. Each registered User will have a unique User identification and password. Only you may use the identification and password assigned to you. You agree to notify Essay Match immediately via Contact Us Page of any unauthorized use of your e-mail address, user identification or user password or any other breach of security regarding this Site of which you are aware.
By clicking the "I Agree" button that appears on the registration page of the Essay Match account creation webpage, you agree to be bound by the terms and conditions set forth in this Agreement, and you represent and affirm that you have the legal capacity to enter into this Agreement and that this Agreement does not conflict with any other agreements or arrangements between you and any other person or entity. The date and time on which you click "I Agree" is the effective date and time of this Agreement. If you do not wish to be bound by the terms and conditions of this Agreement do not click on the "I Agree" button. You will not be permitted to use the Services or purchase Materials if you do not agree to the terms of this Agreement.
2. EXCLUSIVE LICENSE OF THE MATERIALS
By posting Materials on this Site, Authors hereby grant Essay Match a perpetual, exclusive, worldwide license (the "License") to reproduce, market, display, transmit, and otherwise use such Materials in any manner necessary to enable Essay Match to provide Authors and Users the Services. Without limiting any other provision of this Agreement, Authors convey to Essay Match the right to include on the Materials uploaded to this Site by such Authors certain information indicating that the respective Materials are subject to the License (the "Watermark"). Authors agree not to sell, distribute, license, assign, delegate, or otherwise transfer or allow any other person or entity to use any Materials, except through this Site, and except as expressly permitted by this Agreement.
3. OWNERSHIP OF THE MATERIALS AND NOTIFICATION OF INFRINGEMENT
By uploading Materials to this Site, each Author represents, warrants and covenants that:
a. He/she is either eighteen (18) years of age or may otherwise lawfully enter into and make binding contracts under applicable law;
b. The Materials are such Author's original works of authorship, and except as provided in subparagraph d. below, the Author is the sole owner of all copyright and other rights in such Materials;
c. The exercise of any rights or licenses granted by this Agreement to Essay Match will not, directly or indirectly, infringe upon the property rights of any third party; and
d. In the event that any portion of the Materials are owned by a person or entity other than such Author ("Other Person"), the Author has received permission from such Other Person(s) to market and license the Materials on this Site in the manner described in this Agreement.
If you believe that Materials displayed on this Site violate your property rights or the property rights of a third party ("Infringing Materials") and you are the owner or an authorized representative of an owner of such property rights, you agree to promptly notify Essay Match by completing a Notice of Claimed Infringement Form ("NOCI Form") and returning it to Essay Match at the email address set forth on the NOCI Form. If you are not the owner or an authorized representative of an owner of a certain property right, but are aware of Infringing Materials on this Site (or believe that Infringing Materials are displayed on this Site), you are encouraged to contact the owner of such property right and alert them to such infringement.
4. CONTENT
Each Author represents, warrants and covenants, at all times during the Term of this Agreement, that the Materials and any other information transmitted on this Site do not:
a. Invade any person or entity's right to privacy;
b. Contain content that is patently offensive, unlawful, false, misleading, obscene, defamatory, harassing, threatening, indecent, lewd, abusive, inflammatory, exploitative, racist, or promote bigotry, hatred or physical harm, or otherwise objectionable;
c. Defame, slander, libel, or otherwise injure any third party;
d. Contain, to the best of such Author's knowledge, untruthful or inaccurate factual information;
e. Harass or advocate harassment of another person or entity;
f. Distribute hate promoting materials;
g. Exploit people in a sexual or violent manner;
h. Result in the sale of illegal goods or services or promote;
i. Violate import/export laws;
j. Contain nudity, violence, or offensive subject matter or a link to an adult website;
k. Solicit personal information from anyone;
l. Publicly display any personal information such as telephone numbers, street addresses, last names, URLs or email addresses without consent from owner of such information;
m. Promote an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
n. Contain unlawful material or promote unlawful behavior;
o. Further or promote any criminal activity or enterprise or provide instructional information about illegal activities including, but not limited to making or buying weapons, violating someone's privacy, or providing or creating computer viruses; or
p. Include a photograph of another person.
Essay Match reserves the right to refuse to permit your publication or sale on this Site of any Materials that Essay Match, in its sole discretion, deems to be in violation of the terms and conditions set forth in this Agreement or otherwise unlawful.
5. USE OF THIS SITE BY USERS
Pursuant to this Agreement, Users receive a limited license to use this Site in accordance with the terms of this Agreement only. Users each represent and warrant that they are either eighteen (18) years of age or may otherwise lawfully enter into and make binding contracts under applicable law. Users agree not to use any portion of this Site or information contained on this Site, including, without limitation, such portions of this Site that allow the upload of Materials to this Site, posting of feedback regarding Materials or Authors, or participation in discussion forums to:
a. Interfere with the operation of this Site via the use of viruses, programs or technology designed to disrupt or damage software or hardware;
b. Harm anyone or any entity in any way;
c. Transmit or post Materials or other information that violate the terms of this Agreement, including, without limitation, Materials and information prohibited pursuant to Section 4 of this Agreement;
d. Acquire Materials from other Users in violation of the terms of this Agreement;
e. Use information obtained from this Site to contact Authors for the purpose of purchasing, licensing, or acquiring rights in intellectual property that may be lawfully purchased or licensed on this Site.
6. BANNING USERS AND REMOVING MATERIALS FROM THIS SITE
Essay Match reserves the right, in its sole discretion, to remove any and all Materials and other content that is determined by Essay Match to violate the terms of this Agreement, or is determined by Essay Match to be inappropriate, offensive, illegal, or harmful in any respect. Essay Match, in its sole discretion, may ban Users who use this Site in violation of the terms of this Agreement. Without limiting any of the foregoing, Essay Match will expeditiously remove any Infringing Materials from this Site upon receipt of a completed NOCI Form. In addition, Essay Match may, in accordance with the terms of the Essay Match Online Privacy Policy, share personal information of Users in response to a court order or subpoena, to ensure lawful use of the Site, and for certain other reasons set forth in such Privacy Policy. Furthermore, Essay Match may, in its sole discretion, amend the policies governing this Site, the Services, User conduct, and use of the Materials at any time without notice,
7. USE OF THE MATERIALS
Licensing Users acquire a limited license to use the Materials they obtain on this Site for the purpose of making personal use only of the Site and the Services solely in accordance with this Agreement. This license expressly excludes, without limitation, any duplication (other than for personal use only), sale, resale, or other commercial use of the Site and the Services (other than buying and selling of Materials in accordance with this Agreement), making any derivative of the Site or the Services, the collection and use of User or Author information for any use not expressly permitted by this Agreement including, without limitation, transactions of any type that are not effected through the Site and agree not to take the following actions with respect to such Materials:
a. Resell any Materials or otherwise profit from the use or display of Materials;
b. Share, duplicate (other than for personal use only), adapt, redistribute, reconfigure, amend, modify or create derivative works from the Materials;
c. Remove or obscure any proprietary rights notices contained in or on the Materials including, but not limited to, the Watermark or any copyright notices; or
d. Export the Materials.
Offers to buy or sell Materials outside of the Site are not permitted. Offers of this nature are a potential fraud risk for both buyers and sellers and circumvent Essay Match's fees.
Some examples of offers outside of the Site include:
- Using User contact information obtained from Essay Match or using any Essay Match system to offer to sell any listed item outside of the Site.
- Cancelling a listing of Materials to sell to a User who became aware of the item through the Site.
- Sending unsolicited (without prior permission) commercial email offers to Users for the same or similar products that they have licensed in the past.
- Circumventing in any way the transactions contemplated on the Site or otherwise attempting to use information obtained from the Site to avoid paying the fees required for the Services.
8. PRICE AND PAYMENT FOR THE MATERIALS
Authors who sell Materials to Licensing Users on this Site and elect to charge Licensing Users for such Materials shall pay to Essay Match an amount equal to Twenty percent (20%) (i.e. $4.00) of the License Fee (the "Commission"). Essay Match offers Authors a choice with respect to the price to charge Licensing Users for Materials posted by such Author on this Site. You may choose to offer your Materials free of charge, or you may elect to charge Twenty Dollars ($20.00) (the "License Fee") for each purchase of a license by a Licensing User to use the Materials you post on this Site. Essay Match shall collect the License Fee and remit a portion of the collected amount to Authors (each, a "Payment") in accordance with the terms of this Agreement after deducting the Commission, any charges for taxes, and credit card fees.
Essay Match will keep track of any Payments due to Authors who have sold Materials to Licensing Users in an account specific to such Author (the "Account"). Essay Match will make Payments of an Author's entire Account balance to such Authors as follows: (a) within seven (7) days of the completion of any calendar month in which an Author's Account balance exceeds One Hundred Dollars ($100.00); or (b) within seven (7) days of Essay Match's receipt of an Author's written request for such Payment, sent via our Contact Us page. Notwithstanding the foregoing, Essay Match will make no more than one (1) Payment to each Author in any given calendar month.
9. TERM AND TERMINATION
This Agreement is in force with respect to all Users at all times. Notwithstanding the foregoing, Essay Match may terminate this Agreement at any time, with respect to all Users, with or without cause, upon three (3) days written notice, which such notice shall be posted on this Site; provided, that Essay Match no longer offers the Materials covered by this Agreement after such termination.
Essay Match may also terminate this Agreement, with or without notice, for cause or without cause, upon Essay Match's decision to remove any Materials or other content from the Site that are determined by Essay Match, in its sole discretion, to violate the terms of this Agreement or any other Essay Match policy, or to otherwise pose a threat of material harm to Essay Match, Users or any third party. In the event of such termination, if a User is an Author: (a) all materials owned by such Author will be removed from the Site; and (b) any Payments due to such Author shall be made within seven (7) days of such termination. All Users whose license to access this Site have been terminated shall be deemed Prohibited Users and shall no longer have the right to use this Site in any way whatsoever. You may terminate this Agreement by contacting Essay Match via our Contact Us page with a specific request to do so. Your request to terminate shall become effective three (3) days after Essay Match has acknowledged receipt of your request. Regardless of the cause of termination of this Agreement or the identity of the terminating party, the provisions of Sections 2, 7, 8, 9, 10, 11, 14, 16 and 19 of this Agreement shall survive such termination. Further, for avoidance of doubt, all provisions of this Agreement relating to payment, fees, disclaimers, limitations of liability, indemnification, and proprietary rights shall survive any termination hereof.
10. DISCLAIMER
USERS USE OF THIS SITE AND THE SERVICES ARE AT USERS' OWN AND SOLE RISK. THE MATERIALS THROUGH THIS SITE ARE OFFERED BY THE AUTHORS ON AN "AS-IS" BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. USERS ARE PROVIDED NO WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE PRIOR STATEMENT, ESSAY MATCH DOES NOT AND CANNOT VOUCH FOR: (a) THE QUALITY, ACCURACY, COMPLETENESS, OR CURRENTNESS OF ANY MATERIALS OR INFORMATION DISPLAYED OR SOLD BY ANY AUTHOR ON THIS SITE; (b) THAT THE MATERIALS ARE LAWFUL TO SELL OR ARE NOT IN VIOLATION OF THE TERMS OF THIS AGREEMENT; OR (c) THAT THIS SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR. USERS AGREE THAT ESSAY MATCH SHALL NOT BE LIABLE TO USERS FOR ANY TORT UNLESS SUCH CAUSE OF ACTION ARISES DIRECTLY AS A RESULT OF ESSAY MATCH'S GROSS NEGLIGENCE.
11. LIMITATION OF LIABILITY
All Users agree that Essay Match shall not be liable or obligated, under any legal theory, for any direct, indirect, incidental, special, punitive, consequential or other damages ("Damages") caused to Users or any third party by reason of publication of Materials on this Site, by any use made of the Materials by any User or third party, any errors or omissions in the Materials, or for any Damages caused to User or third party using this Site including, but not limited, to Damages sustained as a result of electronic malfunctions or difficulties, failed or incomplete transmissions, viruses, Trojan horses or the like.
12. RELATIONSHIP
Essay Match is not the agent, fiduciary, trustee, or other representative of you or any Author or User for any purpose whatsoever as a result of this Agreement or such other parties' use of this Site.
13. WAIVER AND MODIFICATION
The failure of any party to insist upon strict performance of any provision herein by any other party shall not be deemed a waiver by such party of any of its rights or remedies or a waiver by it of any subsequent default by the other party. Essay Match may amend this Agreement at any time by posting the amended terms on this Site. Your use of this Site following any amendment of this Agreement will signify your assent to and acceptance of the revised terms.
14. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Essay Match and its respective officers, directors, employees and agents, from and against any and all Damages, claims, demands, actions, judgments, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
a. Your use of and access to this Site;
b. Your violation of any term of this Agreement or any other Essay Match policy;
c. Your violation of any third party right, including without limitation any copyright, property, or privacy right;
d. Any claim that submission or use of any Materials or information on this Site by you caused damage to a third party; and
e. Your violation of any State, Federal, Foreign, or International laws.
15. ASSIGNMENT
This Agreement and any rights granted hereunder may not be transferred, sublicensed, or assigned by you, but may be assigned by Essay Match without restriction. Any transfer, sublicense, or assignment in violation of this Section shall be null and void.
16. JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of law (whether of the State of California or any other jurisdiction). Each party to this Agreement hereby irrevocably and unconditionally consents to submit, for any action, proceeding or investigation in any court, arbitration or before any government authority ("Litigation") arising out of or relating to this Agreement and the transactions contemplated hereby, to the exclusive jurisdiction of: (a) the Superior Court of the State of California, San Francisco County; or (b) the United States District Court for the Northern District of California (and agrees not to commence any Litigation relating thereto except in such venues).
17. SEVERABILITY
If any provision herein is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, legal, operative and enforceable to the maximum extent permitted by applicable law while preserving its original intent. The invalidity, illegality or unenforceability of any part of this Agreement shall not render invalid the remainder of this Agreement.
18. PRIVACY POLICY
You hereby acknowledge that you have received the Essay Match Online Privacy Policy set forth on this Site, as amended from time to time, (the "Essay Match Privacy Policy") and agree to: (i) Essay Match's use of information about you in accordance with the Essay Match Privacy Policy; and (ii) abide by the terms of the Essay Match Privacy Policy, as amended from time to time.
19. NO THIRD PARTY BENEFICIARIES
Any agreement contained, expressed or implied in this Agreement shall be only for the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns, and, excepting with respect to the Authors and Materials posted by such Authors, such agreements shall not inure to the benefit of the obliges of any indebtedness of any third party, it being the intention of the Parties that no Person shall be deemed a third party beneficiary of this Agreement, except to the extent a third party is expressly given rights herein.
20. EQUITABLE REMEDIES
User acknowledges and agrees that: (a) Essay Match expended significant resources to develop the Site; (b) certain breaches or threatened breaches by a User of any provision herein may result in irreparable injury and damage to Essay Match for which it may not be reasonably or adequately compensated in money damages; (c) Essay Match may have no adequate remedy at law for any such breach or threatened breach; and (d) in the event of a breach or threatened breach of any provision herein by a User for which there is no adequate remedy at law, Essay Match shall be entitled, in addition to all other applicable remedies under this Agreement or in law or in equity, to apply for specific performance by User of the terms of this Agreement, immediate injunctive and other appropriate equitable relief, including, without limitation, the enjoining of User from the breach of any covenant set forth herein. No right or remedy conferred upon or reserved Essay Match is exclusive of any right of remedy herein or permitted in law or in equity, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity (or by statute or otherwise).
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