General Business Terms & Conditions of Premedia Software Inc.
DATE OF LAST REVISION, JANUARY 13, 2012
1. Scope of Application
1.1 The following General Business Terms and Conditions of Premedia Software Inc. (hereinafter “Premedia”) shall apply to all visitors and users of Premedia’s websites www.premediasoftware.com, www.fixmyprintfile.com, and my.fixmyprintfile.com (hereinafter “User”).
1.2 These General Business Terms and Conditions (hereinafter “Terms and Conditions”) shall also apply to and form part of all agreements, written or oral, by Premedia to provide services to enterprises that are subscribed at Premedia’s Sites (hereinafter “Subscriber”). In addition, the Subscriber shall also be accountable for the person acting on his behalf (hereinafter “Agent”) according to the Terms and Conditions for using or visiting Premedia Sites. The Subscriber accepts these Terms and Conditions by obtaining a user account on the Sites.
1.3 These Terms and Conditions supersede and cancel any previous agreements and understandings whether oral, written or implied with respect to the subject matter hereof. These Terms and Conditions also apply to future services and service contracts even if no future reference with respect to their applicability is made, and acceptance of any future services by Premedia is expressly conditioned on Subscriber’s acceptance of these Terms and Conditions.
1.4 Any terms and conditions agreed to by User or Subscriber or other restrictions contrary to or in deviation of these Terms and Conditions will not be recognized, unless Premedia has explicitly acknowledged in writing in each individual case that such terms and conditions or restrictions replace and/or supersede these Terms and Conditions.
1.5 All other agreements, declarations, ancillary agreements and amendments to these Terms and Conditions require a written instrument duly signed by authorized representatives of Premedia to be valid. This also applies to any amendment to this clause.
1.6 The service agreement between Premedia and the Subscriber is at the latest concluded with the execution of the service.
1.7 The limits on Premedia’s liability are exclusively determined by these Terms and Conditions and by Premedia’s confirmation e-mail to the Subscriber in accordance with Section 10.3, Sentence 2.
1.8 Premedia does not assume any risk of procurement, unless Premedia has in each individual case assumed in writing such risk of procurement and has explicitly referred to it as the risk of procurement.
1.9 Premedia reserves the right, in its sole discretion, to deny, restrict, suspend, or terminate any User’s access to all or any part of the Sites at any time, for any or no reason, with or without prior notice or explanation, and without liability. Premedia expressly reserves the right to remove any User’s or Subscriber’s profile, account and/or other information and/or deny, restrict, suspend, or terminate their access to all or any part of the Sites if it determines, in its sole discretion, that any User has violated these Terms and Conditions or poses a threat to the Sites and/or its Users.
1.10 Use of the Sites is void where prohibited. Users must be natural persons at least 18 years old or otherwise have the express consent of their parents or legal guardians, but in no event may any User be younger than 13 years old, to use the Sites. By agreeing to these terms or by using any Site, the User represents and warrants to have the right, authority and capacity to enter into these Terms and Conditions and to abide by all of the terms and conditions herein. Certain functionality of the Sites may require each User seeking to use those services to register and create accounts for validation. Premedia reserves the right to decline its services to any User for any reason and without explanation based upon its findings in validating the User’s registration.
2.1 The services of Premedia are exclusively for enterprises (B2B). Individual consumers are excluded from using the services and are not permitted to subscribe to Premedia’s website. The Subscriber may use the service solely for his own business purposes and not for private use.
2.2 Premedia’s services are currently exclusively provided to business customers that have their registered office in the United States of America or in Canada. Premedia may, at its own discretion, extend its services to other countries in the future.
3.2 The Subscriber can manage and change his account data and settings once he is logged in (password and contact data, including the e-mail address used as log-in identification). If the Subscriber gives personal account validation information to a third party, such third party will be able to manage and make changes to the Subscriber’s account to the exact same extent. Therefore, the Subscriber shall keep his login credentials confidential. Any changes that are made to the Subscriber’s account by using the correct account validation information shall be deemed to have been made by the Subscriber himself.
The Agent shall act only on behalf of an enterprise as Subscriber and shall use the services of Premedia solely for purposes of such enterprise. The Agent is deemed to be legally authorized to enter into the service agreement on behalf of the Subscriber. The Subscriber shall be liable for the conduct of his Agent as he is for his own actions.
3.3 The Subscriber may cancel his subscription and thereby terminate his account at any time. However, when the Subscriber cancels his subscription and terminates his account unused pages on his account expire at that moment without being refunded.
4.1 When visiting the Sites or sending e-mails to Premedia, the User consents to receive electronic communications from Premedia. Premedia will communicate with the User by e-mail or by posting notes on the Sites. The User agrees that all notices, agreements, disclosures and other communication that Premedia provides to the User electronically satisfy any legal requirement that such communications be in writing.
4.2 Any communication or material the User transmits to the Sites by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as non-confidential and non-proprietary. This does not apply to communications or material containing personally identifying information transmitted by the User in the subscription area of the Sites.
4.3 Anything the User transmits to or posts at the Sites may be used by Premedia or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, Premedia is free to use any ideas, concepts, know-how, or techniques contained in any communication the User sends to the Site for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information. This does not apply to communications or material containing personally identifying information transmitted by the User in the subscription area of the Sites.
4.4 Users and Subscribers agree to (a) provide accurate, current and complete information as prompted by any registration forms on the Sites (hereinafter “Registration Information”); (b) maintain and promptly update the Registration Information, and any other information provided to Premedia, to keep it accurate, current and complete; (c) maintain the security of their password and identification; and (d) be fully responsible for all use of their account and for any actions that take place using their account. Misrepresentation may preclude User’s use of the Sites in the future.
5.1 All content included on Premedia’s Sites, including but not limited to text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, software, and other material is the property of Premedia or its content suppliers and protected by international copyright laws. The compilation of all content on the Sites is the exclusive property of Premedia and protected by international copyright laws. All software used on the Sites is the property of Premedia or its software suppliers and protected by international copyright laws.
5.2 Graphics, logos, page headers, button icons, scripts, and service names are international trademarks or registered trademarks of Premedia and may not be used in connection with any product or service that is not Premedia’s. All other trademarks not owned by Premedia that appear on the Sites are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Premedia.
5.3 Images of people or places displayed on the Sites are either the property of, or used with permission by, Premedia. The use of these images by the User, or anyone else authorized by the User, is prohibited unless specifically permitted by Premedia. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
6. Website access
6.1 Users or Subscribers are not allowed to download (other than page caching) or modify the Sites, or any portion of it, except with express written consent of Premedia. The resale or commercial use of the Sites or its contents, any derivative use of the Sites or its contents, any downloading or copying of account information, or any use of data mining, robots, or similar data gathering and extraction tools are explicitly forbidden.
6.2 The Sites, information, material or technology contained in the Sites or any portion of it may not be copied, reproduced, duplicated, published, sold, resold, distributed, licensed, supplemented, transmitted, or otherwise exploited for any commercial purpose without express written consent of Premedia. The User and the Subscriber may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Premedia without express written consent. The User and the Subscriber may not use any meta tags or any other “hidden text” utilizing Premedia’s name or trademarks without the express written consent of Premedia. Any breach of the foregoing shall result in termination of the permission of use granted by Premedia hereunder.
7. REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT
7.1 Users and Subscribers may submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” Users and Subscribers may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Premedia reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted or submitted content.
7.2 The User and the Subscriber represent and warrant that they own or otherwise control all of the rights to the submitted content; that the content is accurate; that use of the content supplied does not violate this policy and will not cause injury to any person or entity; and that the User or the Subscriber will indemnify Premedia for all claims resulting from content supplied. Premedia has the right but not the obligation to monitor and edit or remove any activity or content. Premedia takes no responsibility and assumes no liability for any content submitted by the User, the Subscriber or any third party.
7.3 Users and Subscriber agree to indemnify and hold Premedia and its subsidiaries, affiliates, officers, directors, members, managers, agents, representatives, employees and corporate or other partners harmless from any loss, liability, claim or demand, including reasonable attorneys’ fees, arising out of or relating to: (a) User’s or Subscriber’s use of the Sites (including the submission of any content by the User or Subscriber) in violation of these Terms and Conditions, (b) any other breach of these Terms and Conditions by the User or the Subscriber, (c) any breach of User’s or Subscriber’s representations and warranties set forth above, or (d) User’s or Subscriber’s violation of any law or the rights of a third party.
8. Copyright Policy
Premedia has a policy of responding to notices of alleged infringement on the Sites that comply with the Digital Millennium Copyright Act (DMCA), which may include removing material claimed to be the subject of infringing activity. If Premedia removes material to comply with the DMCA (“Removed Content”), it will attempt to contact the provider of such Removed Content to enable them to make a counter notification pursuant to sections 512(g)(2) and (3) of that DMCA. Please note that Users and Subscribers will be liable for damages (including costs and attorneys’ fees) if they materially misrepresent that a product or activity is infringing your copyrights. Premedia will terminate the accounts of any Users or Subscribers and/or block access to the Sites of any Users or Subscriber who repeatedly infringe the copyrights of others.
Digital Millennium Copyright Act (DMCA) – Infringement Notification
To file a notice of infringement, you must provide Premedia with a written notice that includes each of the following items:
Detailed identification of the copyrighted work that you believe has been infringed.
Detailed identification of the material you claim infringes this copyrighted work.
Information reasonably sufficient to permit Premedia to contact you (e-mail address is preferred).
The statement: “I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Send the Infringement Notification to the following address:
By email: firstname.lastname@example.org
By mail: Premedia Software Inc., 300 Brickstone Square Suite 602, 01810 Andover, Massachusetts
Digital Millennium Copyright Act (DMCA) – Counter Notification
The provider of Removed Content may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. When Premedia receives a counter notification, it will reinstate the Removed Content. Please note that you will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that a product or activity is not infringing the copyrights of others.
To file a counter notification, you must provide us with a written notice that includes each of the following items:
Detailed identification of the material Premedia has removed.
Your name, address, telephone number, e-mail address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Boston, Massachusetts if your address is outside of the United States), and that you will accept service of process from the person who provided notification under this Section 8 or an agent of such person.
The statement: “I swear, under penalty of perjury, that I have a good faith belief that each search result or message identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
Send the Counter Notification to the following address:
By email: email@example.com
By mail: Premedia Software Inc., 300 Brickstone Square Suite 602, 01810 Andover, Massachusetts
9. Service & Support
9.1 Premedia’s services are solely provided on a Software-as-a- Service (SaaS) basis. No rights or licenses with respect to the products used for the service or the related documentation are granted or deemed granted apart from the service hereunder or in connection herewith.
9.2 The service will have uptime availability to Subscribers of 97% per year (maximum accumulated uptime availability). Premedia’s services are solely for files that consist of a maximum of 160 pages
9.3 To use the services of my.fixmyprintfile.com, the Subscriber needs to have at least one prepaid page left on his account. Services will be suspended when the account reaches zero pages.
9.4 In the event that the amount of pages on the account of the Subscriber remains unchanged for one entire year, the account will be suspended and no service will be available. Unused pages expire at this moment and are non-refundable.
9.5 The Subscriber may check the current page balance at any time on his Premedia account at my.fixmyprintfile.com.
9.6 Once files have finished uploading, they are queued for processing. Uploaded files may sit in queue for as long as 60 minutes before processing starts.
9.7 Files that have been selected for processing can only be cancelled while they are still uploading.
9.8 Once a file begins processing, the process shall be finished within 20 minutes. Otherwise the processing will be stopped and the page balance will be credited the amount previously subtracted to process the job.
9.9 The original submitted file and the output file shall remain on Premedia’s system for 48 hours after processing of the output file has been completed. Thereafter they are automatically deleted.
9.10 The Subscriber agrees not to misuse Premedia’s services, including but not limited to: (a) using the service to engage in unlawful activity, or in conduct that adversely affects Premedia’s customers, employees, business, or any other person(s), or that interferes with Premedia’s operations, network, reputation, or ability to provide quality service, including but not limited to the generation or dissemination of viruses, malware or “denial of service” attacks; (b) “spamming” or engaging in other abusive or unsolicited communications, or any other mass, automated voice or data communication for commercial or marketing purposes (c) accessing, or attempting to access without authority, the information, accounts or devices of others, or to penetrate, or attempt to penetrate, Premedia’s or another entity’s network or systems; (d) running software or other devices that maintain continuously active internet connections when a computer’s connection would otherwise be idle, or “keep alive” functions (e.g. using a Data Plan for Web broadcasting, operating servers, telemetry devices and/or supervisory control and data acquisition devices); or (e) assisting or facilitating anyone else in any of the above activities. The Subscriber agrees that a violation of this section harms Premedia, which cannot be fully redressed by money damages, and that Premedia shall be entitled to immediate injunctive relief in addition to all other remedies available.
9.11 Support by Premedia will be provided via e-mail from the email address firstname.lastname@example.org. Premedia will send a confirmation e-mail after receiving support requests. Support will provide a response within five business days after receipt of the complaint.
9.12 In the event that a file is returned visually incorrect to the Subscriber, he may file a complaint for a credit with Premedia’s support within 24 hours from the time the file finished processing. Visually incorrect refers to a file in which the expected output, based on the source file and selected job options, is visually different than the perceived result. This includes unexpected visual results related to text, vector graphics, images, or page geometries. Upon receiving the complaint, Premedia Support will analyze the file to verify that www.fixmyprintfile.com incorrectly processed the file. If so, a credit equal to the amount of pages within the job will be applied to the account. If the complaint is not submitted within 24 hours, no support will be available.
10. Service Fees and Charges
10.1 The current fees of Premedia are available on fixmyprintfile.com. Premedia may change the fees for its service packages as well as the packages themselves with immediate effect at any time without notice. Service Fees may only be paid by credit cards accepted by Premedia.
10.2 The fees and charges identified in these Terms and Conditions and in Premedia`s service package fees or other fees do not include any sales, VAT, excise, value added, state, local, or other taxes, fees or duties (collectively, “Taxes”), howsoever assessed, levied, or based, that may be imposed or that will become due as a result of the services provided hereunder. All such Taxes (with the exception of income taxes or other taxes imposed upon Premedia and measured by the gross or net income of Premedia) are the sole responsibility of the Subscriber.
10.3 Fees for adding pages to his account shall be prepaid by the Subscriber. After successful transfer of credit, Premedia will send a confirmation e-mail (including an invoice) to the Subscriber.
11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
11.1 THE SITES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING ANY SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO THE USER OR SUBSCRIBER THROUGH THE SITES ARE PROVIDED BY PREMEDIA ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. PREMEDIA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING ANY SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO THE USER OR SUBSCRIBER THROUGH THE SITES, UNLESS OTHERWISE SPECIFIED IN WRITING. BOTH, THE USER AND THE SUBSRIBER EXPRESSLY AGREE THAT THE USE OF THE SITES IS AT HIS SOLE RISK.
11.2 TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, PREMEDIA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PREMEDIA DOES NOT WARRANT THAT THE SITES; INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING ANY SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO THE USER OR THE SUBSCRIBER THROUGH THE SITES; ITS SERVERS; OR E-MAIL SENT FROM PREMEDIA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PREMEDIA WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITES OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO THE USER OR SUBSCRIBER THROUGH THE SITES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO THE INDIVIDUAL USER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO HIM, AND HE MIGHT HAVE ADDITIONAL RIGHTS.
11.3 Premedia makes no warranty that its services will be uninterrupted, timely, secure, or error free. Premedia assumes no responsibility for the deletion or failure to store any data or other information provided by the User or Subscriber on the service. Premedia makes no warranty with regard to the time it takes to submit a file and get it back.
11.4 While Premedia uses reasonable efforts to include accurate and up to date information in the Sites, Premedia makes no warranties or representations as to its accuracy. Premedia assumes no liability or responsibility for any errors or omissions in the content of the Sites.
11.5 Premedia Software cannot guarantee that corrected files are 100% compatible with all production systems and applications. This includes, but is not limited to, layout systems, editorial systems, ad tracking systems, digital asset management systems, and RIPs. Premedia will therefore not credit files that process successfully in FixMyPrintFile but fail or reproduce incorrectly in subsequent software.
13. Force Majeure
If Premedia is prevented from observing its obligations (under this agreement) due to force majeure, state intervention, catastrophes, war, revolt, strikes in its own plants, supply facilities, ancillary suppliers or in the transportation sector, irrespective of whether they concern the territory of the United States of America or areas from which and/or through which the Service is delivered by Premedia, and for which Premedia is not accountable, then Premedia is released of its obligation to perform for the period and to the extend of the reason of hindrance. Insofar the User has no rights or claims in relation to non-delivery or delayed delivery.
14. Termination of Service Contract
14.1 The contractual relationship between the Parties shall commence on the date of the first subscription of the Subscriber and shall remain in effect for an unlimited period of time.
14.2 The contractual relationship may be terminated by either party by giving notice of termination by e-mail to the other party,
14.3 The Subscriber may terminate the contractual relationship by cancelling his subscription, subject to Section 3.3.
15. Final Provisions
15.1 The Subscriber is not entitled to assign any rights under the service agreement with Premedia.
15.2 These Terms and Conditions and all disputes arising therefrom or in connection therewith shall be subject exclusively to the laws of the State of Massachusetts, USA, excluding its conflicts of law principles. The provisions of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.
15.3 Boston, Massachusetts, USA, shall be the exclusive jurisdiction for any and all disputes arising hereunder or relating hereto.
15.4 Place of performance for Premedia is the place of business of Premedia in Massachusetts, USA.
15.5 Premedia reserves the right, at its sole discretion, to make changes to its Sites, these Terms and Conditions, policies and disclaimers at any time. Such changes will become effective immediately and binding after their posting on the Sites. The User and the Subscriber agree to regularly review Premedia’s Terms and Conditions and be aware of the changes made. By continuing to use the Sites after any posted revision, the User and the Subscriber agree to be bound by Premedia’s new Terms and Conditions.
15.6 The invalidity or unenforceability of a provision of these Terms and Conditions shall not affect the validity and enforceability of the remaining provisions of these Terms and Conditions. In the case of a dispute, any invalid or unenforceable provision shall be substituted by a legally possible provision, which most closely approximates the intent and economic effect of the invalid provision.
15.7 Contact Information
If the User or the Subscriber has any questions or concerns about these Terms and Conditions or if they need further assistance with respect to access to or use of the Sites, they may contact Premedia’s Customer Service department as indicated below. Premedia will attempt to respond to the questions or concerns promptly after receipt.
|Mail address:||Premedia Software Inc., 300 Brickstone Square Suite 602, 01810 Andover, Massachusetts|