Daybook Terms of Use

DAYBOOK, INCORPORATED DBA DAYBOOK NETWORK
AGREEMENT

READ THE FOLLOWING CAREFULLY. THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU, EITHER A VIEWER AND/OR CONTRIBUTOR TO OUR WEBSITE (AS DEFINED BELOW) (COLLECTIVELY, “YOU”, “YOUR”), AND DAYBOOK, INCORPORATED DBA DAYBOOK NETWORK (“DAYBOOK”, “WE” OR “US”) REGARDING THE USE OF THE ATLANTA DAYBOOK WEBSITE (WWW.ATLANTADAYBOOK.COM), AND/OR NASHVILLE DAYBOOK (WWW.NASHVILLEDAYBOOK.COM) AND/OR THE DALLAS-FORT WORTH DAYBOOK WEB SITE (WWW.DFWDAYBOOK.COM), AS WE MAY UPDATE THESE WEBSITES FROM TIME TO TIME (COLLECTIVELY, INCLUDING ITS ASSOCIATED DOCUMENTATION, E-MAIL DIGESTS, AND SOFTWARE, THE “WEBSITE”).

BY (I) CLICKING YOUR ACCEPTANCE OF THIS AGREEMENT, (II) ACCESSING OR USING THE WEBSITE OR ANY PART OF THE WEBSITE, OR, (III) IF NOT REGISTERING ONLINE BUT RATHER MAKING A POSTING OR BEING LISTED AS AN EXPERT (AS DEFINED BELOW) AND ASKING TO BE INVOICED BY PAPER, NOT DISSENTING TO THE TERMS HEREIN STATED WITHIN 10 DAYS FROM OUR MAILING TO YOU, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS, USE THE WEBSITE, MAKE ANY POSTINGS OR BE LISTED AS AN EXPERT. For purposes of this Agreement, We will assume (and by using this Website You warrant) that You have the requisite legal capacity and authority to enter into this Agreement (i.e., that You are of sufficient age and are entitled to bind Your organization in contract).

  1. Grant of License to you. Subject to the terms and conditions of this Agreement, We grant to You a non-exclusive, non-transferable right to access and use the Website, up to and in accordance with the scope of use permitted in this Agreement and according to the fees paid by You to Us for any Postings.
  2. Ownership. This Website is, and at all times shall remain, Our (and Our licensors’) sole and exclusive property, including all copyrights, patents, trade secrets and other worldwide intellectual property rights inherent therein or appurtenant thereto.
  3. Restrictions. You shall not directly or indirectly (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to discover the source code of, or create derivative works based on, the Website, (ii) use this Website in any way other than in its intended manner, or (iii) disable, circumvent or otherwise avoid any access control or security device, process or procedure established with respect to the Website. All rights not expressly granted are reserved by Daybook.
  4. Postings and Expert Listings. You agree to publicize various information, including but not limited to data, text, music, sound, photographs, graphics, video or other material in the form of a posting (the “Posting”), or as a person putting themselves out as an expert for the primary purpose of being contacted by media representatives (an “Expert” or an “Expert Listing”) for a Fee (as defined below). You may be a representative of a media, public relations, or other company or organization, or may be a viewer who wishes to contribute information to the Website according to the terms of this Agreement. You shall at all times adhere to the process detailed on How Does This Work page in the Website to submit stories for Posting and be responsible for the information included in a Posting or as an Expert, and shall indemnify Daybook for any intellectual property infringement claim. Under no circumstances will Daybook be liable to any third party or to You for any information in a Posting or Expert Listing. You, and not Daybook, guarantee and control the suitability, accuracy, integrity or quality of and in any such Posting or Expert Listing. Notwithstanding the foregoing, Daybook may, in its sole discretion, review and approve or decline the Posting or Expert Listing before it is posted on or available through the Website. Once the Posting or Expert Listing is posted, Daybook shall have the right, but not the obligation, in its sole discretion, to remove any Posting or Expert Listing that is posted on the Website that violates this Agreement or that Daybook, in its sole discretion, finds to be otherwise objectionable. The approval or declination of the Posting and/or Expert Listing shall under no circumstances attach any liability to Daybook. A Posting or Expert Listing shall not include:
    • Any information that You know to be false, misleading, or fraudulent;
    • Any information that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
    • Any information that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
    • Any information that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any individual or entity;
    • Any direct solicitation of money for private gain (You may request that donations be directed to a nonprofit corporation or a foundation);
    • Any material that contains 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;
    Additionally, a Posting or Expert Listing may not promote any illegal activity; impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity; interfere with or disrupt the Website or servers or networks connected to the Website and its service; violate any local, state, national or international law, rule or regulation. BY UPLOADING, SUBMITTING, TRANSMITTING OR OTHERWISE MAKING A POSTING OR EXPERT LISTING, YOU GRANT DAYBOOK A NON-EXCLUSIVE RIGHT TO COPY, MODIFY, PUBLISH AND DISTRIBUTE PUBLICLY, AND PREPARE DERIVATIVE WORKS OF THAT INFORMATION IN ACCORDANCE WITH THIS AGREEMENT. If any part of the Posting or Expert Listing is not Your original work, or for which You do not have the appropriate copyright or other proprietary rights, it is Your responsibility to obtain permission from the copyright or proprietary rights owner before making that Posting or Expert Listing available to us. Daybook has the right to assume that You are the legal and true owner of a Posting or Expert Listing being submitted.
  5. Fees. You agree to pay in a timely manner all amounts due and incurred by You in connection with a Posting or Expert Listing and this Website, including any late payment fees, as are specified in Your order submitted via this web site, this Agreement or in an invoice (the “Fee” or “Fees”). Fees are nonrefundable unless otherwise indicated. Unless otherwise indicated in Your order, all amounts shall be due upon receipt of invoice. All amounts are exclusive of taxes, duties and similar fees, and You agree to pay (or reimburse Us for), all such amounts incurred or due. Overdue amounts are subject to a late payment interest charge, at the lower rate of (i) one and one-half percent (1.5%) per month, or (ii) the maximum legal rate. Overdue payments may result in interruption or suspension of Postings until amounts due are paid in full. You further agree to promptly pay or reimburse us for all of Our costs and expenses, including reasonable collection and attorneys’ fees, we may incur in collecting amounts due under this Agreement or in enforcing this Agreement. This Agreement and Your Postings or Expert Listing also may be subject to You satisfying a credit check or providing Us with adequate assurance of payment or prepayment.
  6. Refunds. Daybook will issue a credit card refund (credit) or an invoice credit (depending on purchase method) to contributors who have read and agreed to our Contributor Terms of Use, registered and purchased submission credits and have submitted content that was rejected as being in violation of the Contributor Terms of Use, if:
    1. The contributor attempted at least once to edit the content to make it conforming to the content standards referenced in the Contributor Terms of Use.
    2. Edited content was subsequently declined a second time by Daybook as nonconforming.
    3. Contributor agrees that they are very unlikely to use their submission credit(s) within the next 30 days for future Daybook submission(s).
    Refunds will not be given for stories that are cancelled at contributor request after approval by Daybook. Refunds will also not be given for change of Publish Dates for Flagship Stories after they have been approved by Daybook.

  7. Warranties and Disclaimer. We warrant that We have the right to provide the Website to You in accordance with this Agreement. You warrant that Your use of the Website and any Postings shall be in accordance with all applicable laws. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES: (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS, OR SYSTEM INTEGRATION, (ii) THAT THE WEBSITE OR THE SERVICE CONFORMS TO ANY DEMONSTRATION OR PROMISE BY DAYBOOK, (iii) ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR (iv) THAT ACCESS TO OR USE OF THE WEBSITE WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE.
  8. Liability Limitation. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE WEBSITE, MAKING ANY POSTINGS OR EXPERT LISTINGS, AND ANY OTHER SERVICES OFFERED THROUGH THE WEBSITE ARE AT YOUR SOLE RISK. THE WEBSITE AND ALL POSTINGS AND SERVICES OFFERED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. UNDER NO CIRCUMSTANCES, SHALL DAYBOOK, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR TO ANY PERSON OR ENTITY CLAIMING THROUGH YOU, FOR ANY LOSS, INJURY, LIABILITY, DAMAGE OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OF, USE OF, INABILITY TO USE, POSTINGS OR EXPERT LISTINGS, OR RELIANCE OF THE WEBSITE OR ANY PRODUCT OR SERVICE PROVIDED TO YOU THROUGH OR IN CONNECTION WITH THE WEBSITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT OR INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, GOODWILL, REVENUE OR PROFITS. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS; EVEN IF AN AUTHORIZED REPRESENTATIVE OF DAYBOOK HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF DAYBOOK, ITS AFFILIATES, AND ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, UNDER SUCH CIRCUMSTANCES TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED THE AMOUNT OF MONEY YOU HAVE PAID TO DAYBOOK IN THE PREVIOUS NINETY (90) DAY PERIOD FOR THE PROVISION OF THIS SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
  9. Indemnification. Subject to the terms of this Agreement, We agree to indemnify and defend You against any claim by an unaffiliated third party that the Website (not Your Postings or Expert Listings), infringes upon such party’s intellectual property rights, and We agree to pay all costs, losses, damages, liabilities and attorneys’ fees that a court finally awards, and all agreed-upon settlements; provided that, We receive (i) prompt written notice of the claim; (ii) all necessary assistance, information and authority necessary for Us to defend the claim and perform our obligations under this Section; and (iii) have sole control of the defense and settlement of such claims and all associated negotiations. If such a claim is made or appears likely to be made, You agree also to permit Us to enable You to continue to use the affected Website, or to modify the Website to make it non-infringing, or to replace the Website with a substantially functional equivalent. If We determine that none of these options is reasonably available, then We may terminate this Agreement. THIS SECTION STATES OUR ENTIRE OBLIGATION AND LIABILITY REGARDING INFRINGEMENT OR CLAIMS OF INFRINGEMENT. We will have no responsibility for claims due to (x) combination of the Website with Your intellectual property or Your Postings or any third party materials, (y) Your breach of this Agreement, or (z) claims in which You have a financial interest. You agree will indemnify, defend and hold harmless Daybook, its affiliates, and their respective officers, directors, employees, agents, successors and assigns, from any and all losses or expenses arising out of or related to copyright, trademark, patent or any other intellectual property rights infringement in any way caused, in whole or in part, by any act or omission of You (including Your employees, agents, representatives, and subcontractors) in connection with this Agreement and the uploading, submission or transmission of Postings on the Website or in the email digest thereof. You also agree to indemnify and hold Daybook and its officers, employees, agents, directors, contractors, and affiliates harmless from any and all claims, actions damages and liabilities (including reasonable attorney fees) arising directly or indirectly out of Your negligence, or willful, wanton, or reckless conduct or out of Your negligence in observing the terms of this Agreement.
  10. Daybook’s interest in protecting copyrighted materials. Daybook does not knowingly publish copyrighted materials without permission. If You believe that any material published on this Website has been used in a way that constitutes copyright infringement and if You are authorized to act on behalf of the owner of the copyright that is allegedly infringed, please provide Daybook with a signed statement containing the following information:
    • a description of the infringing material
    • a description of the copyrighted work(s) that You believe has been infringed;
    • the name of the owner of the copyright,
    • Your name, address, telephone number and/or email address,
    • a statement that You have a good faith belief that the allegedly infringing use was not authorized by the owner, an agent for the owner, or by law,
    • a statement that all of the information You have provided is true, and
    • a statement, made under penalty of perjury, that You are the owner of the copyright or are authorized to act on behalf of the owner.
    Please address statement via certified US mail, return receipt requested, to:

    Ms. Karla Sinclair
    Daybook, Incorporated
    1200 Ashwood Parkway
    Suite 135
    Atlanta, GA 30338

  11. Security and Privacy. You are responsible for maintaining the confidentiality of Your username and password selected during Your account creation. Daybook has no way of knowing and shall not be responsible or liable if a third party individual obtains Your username and password through improper means. Although You are protected by username and password security, You acknowledge and understand that the Internet is inherently insecure and that no web site operator can guarantee that a web site is completely secure. Daybook does not warrant, that the Website or any Posting is secure or "hacker proof”. You hereby expressly acknowledge such disclaimer. Our Privacy Policy describes the information Daybook collects when You use the Website to post or view a Posting or Expert Listing. It also describes how Daybook uses the personal information that You share with Us and some of the steps Daybook takes to protect Your privacy. Daybook’s Privacy Policy is part of this Agreement and incorporated by reference herein. By agreeing to this Agreement, You are also consenting to Daybook’s use of Your personal information in accordance with Daybook’s Privacy Policy. Please take a few minutes to review this Privacy Policy. Furthermore, You acknowledge, consent and agree that Daybook may access, preserve, and disclose Your personal information and the Posting as required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to do any or all of the following: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Posting violates the rights of third-parties; (d) respond to Your requests for assistance; or (e) protect the rights, property, or personal safety of Daybook, its users or the public.
  12. Links to Other Sites. The Website may provide links to other World Wide Web sites or resources. Because Daybook has no control over such sites and resources, You acknowledge and agree that Daybook 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, or other materials on or available from such sites or resources. You further acknowledge and agree that Daybook 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 in reliance on any such content, goods or services available on or through any such site or resource.
  13. Feedback. Daybook welcomes Your comments and feedback regarding the Website and its services. All information and materials submitted to Daybook through the Website, such as any comments, feedback, ideas, questions, designs, data or the like (collectively, "Feedback"), will be considered NON-CONFIDENTIAL and NON-PROPRIETARY. For this reason, we ask You not to send Daybook any information or materials that You do not wish to assign to Daybook, including, without limitation, any confidential information or any original creative materials such as product ideas, computer code, or original artwork. By submitting feedback to Daybook through the Website, You assign to Daybook, free of charge, all worldwide rights, title and interest in all copyrights and other intellectual property rights in the Feedback that You submit. Daybook will be entitled to use any Feedback You submit through the Website, and any ideas, concepts, know-how or techniques contained in any such Feedback, for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products and services using such Feedback without restriction and without compensating to You in any way. You agree to be responsible for the information contained in any Feedback submitted to Us through the Website, including, without limitation, its truthfulness and accuracy. Feedback does NOT include the Postings posted by You as part of the regular service of the Website.
  14. Termination for Breach. We reserve the right to terminate or suspend this Agreement or any Posting or Expert Listing immediately (without an opportunity to cure) if, in Our opinion, (i) You have repeatedly breached this Agreement, or (ii) termination is reasonably required for Us to avoid liability. We reserve the right immediately to investigate, involve and cooperate with appropriate authorities regarding any illegal or unauthorized activities involving the Postings, Expert Listing or the Website as a result of Your access and use, without limiting any other right or remedy available to Us. You consent to Our disclosing Your account information, surveys and other items for such purposes.
  15. Governing Law; Dispute Resolution. You agree that: (i) this Agreement and your use of the Website shall be governed by the laws of the state of Georgia, USA, without regard to conflict of laws principles, and (ii) any controversy or claim arising out of or relating to this Agreement or its breach that is not settled directly by the parties will be arbitrated in Atlanta, GA, in accordance with the applicable arbitration rules of the American Arbitration Association (i.e., the commercial rules if you are an entity, the consumer rules if you are an individual, or the international rules if you are not a US resident or US based); except that: (x) if You have violated or (if in Our reasonable opinion) You may violate Our intellectual property rights, We may pursue any available remedy in any forum or jurisdiction against You, and (y) We may at any time seek injunctive or other appropriate relief in any state or federal court in the State of Georgia or in any other forum having jurisdiction over You. The arbitration award shall be binding and may be enforced in any appropriate court of competent jurisdiction.
  16. Miscellaneous. This Agreement is solely between You and Daybook; it does not create any third-party beneficiary relationships. The failure of either party to require performance of any part of this Agreement shall not be deemed a waiver of any present or future right. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the applicable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. This Agreement (all of which are incorporated into this Agreement) collectively constitutes the entire agreement between you and Daybook regarding their subject matter, and supersedes all prior or contemporaneous communications, whether electronic, oral or written with respect to such subject matter. The section titles in this Agreement are solely used for the convenience of the parties. Daybook shall not be liable for any failure or delay in performing its obligations due to force majeure or other circumstances beyond its reasonable control. Unless We indicate otherwise, any notice hereunder shall be in writing and shall be given by registered or certified mail, postage prepaid, or nationally recognized overnight courier, to the parties’ respective addresses (as such may be updated upon notice). Notices to Us shall be sent to the attention of:

    Ms. Karla Sinclair
    Daybook, Incorporated
    1200 Ashwood Parkway
    Suite 135
    Atlanta, GA 30338

Notices shall be effective upon delivery or refusal of delivery. All terms that by their nature or understanding should survive termination or expiration of this Agreement shall survive.

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