Acceptance of Terms
Creel Printing Service
As used herein, the term “Creel Printing Service” shall mean any intellectual property, products or services that Creel Printing & Publishing Company, Inc. (“Creel”) provides to you, including but not limited to, digital editions, data entry services, mobile applications, email deployment, animations, analytics, hosting, design services, web development, customer service, consulting service, licenses, system availability, or any other related software, technology, or service. Creel may utilize selected third-party subcontractor partners of Creel to provide any portion of the Creel Printing Service. Creel may, at any time, change or discontinue any aspect, feature, or price of the Creel Printing Service. Creel may also impose limits on certain features and services or restrict your access to parts or all of the Creel Printing Service without notice or liability. You acknowledge that Creel may automatically issue upgraded versions of the software and systems comprising the Creel Printing Service and, accordingly, may upgrade the version of the Creel Printing Service that you are using without prior notice.
Registration and Security
When using the Creel Printing Service, you may be required to create an account (publisher account, email account, and/or admin account) by registering and providing certain business and contact information. You are responsible for providing accurate registration information and for updating your account information as required. Creel Printing reserves the right to change or revoke your username or password, as it deems necessary. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account or password. You shall be liable for the losses incurred by Creel or others due to any unauthorized use of your Creel account.
You may only use the Creel Printing Service for lawful purposes and in accordance with this Agreement, any standards or requirements established by Creel, and/or any other agreements between you and Creel. You may not restrict or inhibit any other person from using or enjoying the Creel Printing Service. You will not use the Creel Printing Service in jurisdictions where such use is prohibited by applicable law. Except as expressly authorized by Creel Printing, you agree not to use or launch any automated system, including without limitation “robots,” “spiders,” and “offline readers,” that accesses the Creel Printing Service in a manner that sends more request messages to the Creel Printing Service in a given period of time than a human can reasonably produce in the same period by using a conventional web browser or otherwise use the Creel Printing Service to collect or harvest any personally identifiable information or any data regarding activities on or usage of the Creel Site. Creel reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Creel Printing Service, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
As used herein, the term “Content” shall include any content or information that you provide to Creel, whether orally, in writing, or electronically, including but not limited to, any content or information contained within PDFs, JPEGs, PNGs, GIFs, HTML, design files, email or email lists, or any other documents or files submitted to Creel. By providing Content to Creel, you grant Creel a limited, non-exclusive license to use the Content in connection with the Creel Printing Service. You further represent and warrant that you have the right, title and interest to any and all Content that you provide to Creel and that your Content does not infringe any third party’s intellectual property rights. It is Creel’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millenium Copyright Act. Creel shall have the right to remove any Content that it, in its sole discretion, finds could be in violation of the provisions hereof, subject to a claim of infringement by a third party, or otherwise objectionable or in breach of your obligations.
Creel is a distributor (and not a publisher) of the Content and has no editorial control over the Content. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including those made in publications offered by the Creel Printing Service, are those of the respective author(s) or publisher(s) and not of Creel. Neither Creel nor any third-party provider of information guarantees the accuracy, timely availability, completeness, or usefulness of any Content. Under no circumstance will Creel be liable for any loss or damage caused by your reliance as a reader on information obtained from the Content or otherwise through the Creel Printing Service. The Creel Printing Service may contain links to other Internet sites and third-party resources. Creel is not responsible for either the availability of these outside resources or their content. Creel is not responsible for any subscriptions associated with the Content. You agree that the person or Organization responsible for uploading and providing the Content through the Creel Printing Service is fully responsible for all payments, refunds or questions associated with fulfillment or subscriptions.
Creel Printing Intellectual Property
The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, names, marks, and all other elements of the Creel Printing Service provided by Creel Printing (collectively the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content provided by you and other users of the Creel Printing Service, all Materials contained on the Creel Printing Service are the property of Creel or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names, including but not limited to Creel, Thermostats, and Media Deck, are proprietary to Creel or its affiliates and/or third-party licensors. Except as expressly authorized by Creel, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, decipher, decompile, disassemble, reverse engineer, or otherwise make unauthorized use of the Materials.
For each publication you pay to create a digital edition through Creel, limited hosting is provided for a period of three years from the date of upload. Limited hosting shall include up to 100,000 page views per frequency of the publication while this agreement is enforce. Publications that exceed 100,000 page views in its given frequency (cumulative of all past and current issues) while this agreement is enforce shall be subject to an additional overage fee. For purposes of determining overage fees, a page view occurs when a user is presented with a view of a page on any platform supported by Creel (digital or App). Please note that a spread view contains two page views. After three years of hosting, Creel will provide continued hosting for an additional archiving fee. Creel does not provide a service level agreement or guarantee any certain hosting or availability uptime.
By submitting a Mobile Application Form (“App Form”) to Creel, you authorize Creel to submit a mobile application (“App”) on your behalf to the selected App Markets (currently iPhone, iPad, and/or Android) as indicated on your App Form. You further agree to be bound by this Agreement and any and all terms and fees contained within the App Form. Creel requires that you secure your own Apple, Google Marketplace, and Amazon Appstore for Android developer accounts for the processing of your App. When using your Apple, Google Marketplace, or Amazon Appstore for Android developer account, you agree to provide Creel with all information and credentials necessary for Creel to develop and submit an App as an authorized developer for your developer account.
Creel does not guarantee that your App will be approved and is not responsible for any applications that are denied for offensive or inappropriate content or for any other reason unrelated to the design or coding of the App itself. You agree to comply with all App content restrictions or requirements as set forth by Apple, Google Marketplace, or Amazon Appstore for Android. You further agree to refrain from any action or conduct that could jeopardize Creel’s developer relationship with Apple, Google Marketplace, or Amazon Appstore for Android. Creel shall have the right to discontinue processing or hosting your App if it believes that you are engaging in conduct that could jeopardize any of its developer relationships.
From time to time, you might request custom services from Creel. Custom services may include consulting, design, web development, software development, or any other services requested outside of Creel’s standard documented services. Creel does not guarantee that it can or will agree to perform any requested custom services on your behalf. To the extent Creel agrees to perform custom services, you will be required to execute a Creel Custom Solutions Agreement. Creel’s Custom Solutions Agreement will include a statement of work and a fee that will cover the agreed upon deliverable (the “Work Product”). Creel will use its good faith, commercially-reasonable efforts to perform the custom services in a timely and professional manner. Changes to the statement of work and/or deliverable may result in additional fees and costs and may alter the time period in which Creel can provide the Work Product. Creel’s Custom Solutions Agreement will include a specified amount of administrative time set aside to engage in meetings and discussions about the custom services project. If you require additional administrative time during the project, you will be billed at an agreed upon hourly rate, as identified in the Custom Solutions Agreement, in 30 minute increments.
Subject to payment pursuant to the Custom Solutions Agreement, for all software programs or products that constitute or include derivative works, customizations or enhancements by Creel of existing software or applications that are part of the Creel Printing Service or Materials, Creel retains all ownership rights in the Work Product unless otherwise agreed to in the Custom Solutions Agreement. You shall only be entitled to use the Work Product pursuant to this Agreement as part of the Creel Printing Service.
By electing to use Creel’s email services, you understand and acknowledge that the primary purpose of Creel’s email system is to send digital edition notifications to readers who have asked or otherwise indicated their desire to receive your Content. You further understand and acknowledge that it is in the best interest of you and other Creel clients to maintain the highest possible reputation of the IP address being used to send out your emails. You agree to upload and use only confirmed, opted-in email lists. Your lists must be cleaned to remove any bad email addresses and must not be more than six months old to avoid outdated or abandoned email addresses. You specifically agree that you will not use Creel’s email services to send spam (unsolicited bulk emails) or to otherwise send unsolicited email to anyone with whom you have no relationship. You agree that you will not incorporate into any lists, emails or uploads to the Creel system any social security numbers, passwords, security credentials, sensitive personal information, or any misleading or incorrect information, including but not limited to names, addresses, email addresses, or subject lines. You agree that you will not upload or use any list that has been purchased, rented, or otherwise obtained from a third party. You agree to adhere to the requirements of the CAN-SPAM Act. You further agree not to use a Creel generated link in any email campaigns (notwithstanding the email service provider) that do not comply with the requirements set forth herein. Creel reserves the right to immediately remove your email privileges if you violate any of these requirements or otherwise engage in conduct that jeopardizes the reputation of Creel’s IP or email services.
By selecting Creel’s Assisted Setup, Retail, or Hands Free services, you agree to have Creel perform data entry on your publication. Data entry services currently include the following: (1) auto and manually linking all URLs and email addresses throughout the publication, (2) setting up the contents drop down menu for your publication, (3) setting up an advertiser menu for your publication, (4) setting up text versions of the articles in your publication, and (5) setting up and placing video, audio, or animation files provided by you. Creel reserves the right to modify the scope of its data entry services upon notice to you. Creel is not responsible for errors that might occur in the data entry process, including specifically any formatting or character errors resulting from the copying of text from your files. With the exception of formatting and character errors contained within the text version of your articles, Creel will make all reasonable efforts to correct within a reasonable amount of time any data entry mistakes you bring to its attention.
Analytics and System Generated Data
Creel gathers and records data and information on you, your account, your publications, the Creel Printing Services you select, and the activities of readers (collectively “User and Reader Information”). To the extent made available to you by Creel, you may use without restriction all User and Reader Information associated with your account. Creel reserves the right to use the User and Reader Information in an aggregated and non-identifiable form for purposes of digital interaction studies and reports. This information may be used by Creel in providing consulting services. Creel further reserves the right to use the User and Reader Information internally for purposes of identifying breaches of this Agreement, diagnosing problems, or improving and developing the Creel Printing Service, such as the decision to introduce new products, services or features.
Payment for Creel Printing Services
To the extent agreed to in advance by Creel, Creel may invoice you for any or all of Creel Printing Services. All amounts due are exclusive of local, state, federal and international sale, value added, excise and other taxes and duties of any kind. You agree to pay any and all taxes and duties arising out of or in connection with the Creel Printing Service, other than taxes levied or imposed based upon Creel’s net income. Any payment not made when due shall accrue interest in the amount of 2.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due. Late payment shall entitle Creel to discontinue all or any component of the Creel Printing Service.
You agree to indemnify and hold Creel, its affiliated companies, contractors, employees, agents, directors, and shareholders and its third-party suppliers, licensors, and partners, harmless from and against any and all liability, claims, penalties, damages, injuries, costs, attorney’s fees or other expenses of any nature whatsoever paid or incurred in connection with claims by any person (including claims of copyright, trademark, or patent infringement, as well as trade secret misappropriation) directly or indirectly arising from or relating to your use or misuse of the Creel Printing Service, any violation by you of this Agreement, or any breach of the representations, warranties, and covenants made by you herein. Creel reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Creel, and you agree to cooperate with Creel’s defense of these claims. Upon notice of any impending claim, action or proceeding, Creel will use reasonable efforts to notify you of any indemnification obligation.
Disclaimer of Warranty
THE CREEL PRINTING SERVICE IS PROVIDED AS IS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, NONINTERFERENCE, ACCURACY OF DATA, ACCURACY OF TRANSLATION, AVAILABILITY, TIMING, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER CREEL NOR ITS AFFILIATES, LICENSORS, OR AGENTS WARRANT THAT THE CREEL PRINTING SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CREEL PRINTING SERVICE, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY INFORMATION, SERVICE, OR GOODS PROVIDED IN CONNECTION WITH THE CREEL PRINTING SERVICE.
Limitation of Liability
IN NO EVENT WILL CREEL OR ITS AFFILIATES, LICENSORS, OR AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOST PROFITS) OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE CREEL PRINTING SERVICE. YOU ACKNOWLEDGE THAT (I) THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE CREEL PRINTING SERVICE; AND (II) CREEL IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF THIRD PARTIES INCLUDING CREEL PRINTING LICENSORS AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
Nothing in this Agreement or any other Agreement between you and Creel will be deemed to place you and Creel in the relationship of employer employee, principal agent, or partners or joint ventures. Neither you nor Creel Printing will under any circumstances be liable for the other’s withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes or charges. You agree that you do not and shall not have any right or authority to bind Creel in any respect. You also agree that you shall not represent to any third person or entity that you have any right or authority to bind Creel in any respect.
Creel has the right, but not the obligation, to monitor the Creel Printing Service to (i) determine compliance with this Agreement, any standards or requirements established by Creel, and/or any other agreements between you and Creel; and (ii) satisfy any law, regulation or authorized government request.
Applicable Law and Binding Effect
This Agreement and any other agreements executed in connection with your receipt of the Creel Printing Service will be governed by and interpreted under the laws of the State of Nevada, and will inure to the benefit of and be binding upon the parties hereto and their heirs, personal representatives, successors and assigns. All actions or proceedings arising out of or related to this Agreement shall be exclusively litigated in any local, state or federal court located in Clark County, Nevada. You hereby to consent to personal jurisdiction in any local, state or federal court located in Clark County, Nevada and hereby waive any objection to process based on personal jurisdiction.
Representation by Counsel – Mutual Negotiation
You agree that you have had the opportunity to be represented by counsel of your choice in negotiating this Agreement. This Agreement shall therefore be deemed to have been negotiated and prepared at the joint request, direction, and construction of the parties, at arm’s length, with the advice and participation of counsel, and will be interpreted in accordance with its terms without favor to any party. The parties hereto and their respective counsel have reviewed this Agreement, and the normal rule of construction to the effect that any ambiguities in this Agreement are to be resolved against the drafting party are not to be employed in the interpretation of this Agreement.
None of the terms of this Agreement, including this section, or any term, right, or remedy herein shall be deemed waived unless such waiver is in writing and signed by the party to be charged therewith. No written waiver shall excuse you of any act other than as specifically referenced therein, and no waiver shall be deemed or construed to be a waiver of such terms or conditions for the future or any subsequent breach thereof. Any failure by Creel at any time, to enforce or require your compliance with any of the terms and conditions of this Agreement shall not constitute a waiver of such terms and conditions in any way, or the right of Creel at any time to avail itself of any and all remedies it may have for any breach of said terms and conditions including, without limitation, any right to terminate this Agreement as specified herein.
You agree that Creel shall not be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including, but not limited to, acts of God, war, civil commotion or industrial dispute (“Force Majeure”).
Attorneys’ Fees and Costs
In the event of litigation arising under this Agreement or any other agreements executed in connection with your receipt of the Creel Printing Service, the prevailing party will recover from the nonprevailing party, in addition to available remedies at law, all reasonable court costs and reasonable attorney’s fees (including charges attributable to law clerks and paralegals) incurred in any such action.
This Agreement constitutes the entire understanding and agreement between you and Creel in connection with the Creel Printing Service, and the You further agree that this Agreement expressly supersedes any and all prior agreements or communications between you and Creel, whether oral or written, in connection with the subject matter set forth in this Agreement. You agree that this Agreement cannot be altered, amended or modified, by you except by a written Amendment signed by both you and Creel.
In the event that any portion of this Agreement is deemed by a court of competent jurisdiction to be unenforceable in whole or in part, said provision shall be limited or curtailed to the extent necessary to bring it within the requirement of present or future law, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision has not been included herein, as the case may be.