Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING AND/OR USING THE TAKADA STORE OR TAKADA SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER AND YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT 18 YEARS OF AGE OR OLDER OR DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE TAKADA STORE OR TAKADA SERVICE.
These Terms of Service ("Agreement") are between you and Wayne & Malcolm ("Wayne & Malcolm," "we," or "us") and govern your access to and use of the TakadaTM Store and the TakadaTM Service.
"Takada Store" means the provision by Wayne & Malcolm of the ability for you to download, display and use digital books and other electronic content (individually and collectively, "Digital Content").
"Takada Application" means (a) software developed by Wayne & Malcolm or third parties that is a part of the software at the time of your initial download and any Digital Content included with such software at the time of your initial download; and (b) updates or upgrades provided by Wayne & Malcolm to the software.
"Takada Service" means the provision by Wayne & Malcolm of Digital Content to you and related services that facilitate access to buy, read and interact with books and other digital content such as we may make available through the service.
Your use of the Takada Application is governed by the terms of the Takada End User License Agreement and not by the terms of this Agreement.
1. User Accounts. When you register for the Takada Service, you must create a user account ("Account"). You will promptly update all Account information to keep it true, accurate, and complete. You will be responsible for all activities that occur under your Account, user name, and password and you agree to keep your password confidential. You agree to notify us immediately of any unauthorized use of your user name or password or if you believe that your password is no longer confidential. We reserve the right to require you to alter your user name and/or password if we believe that your Account is no longer secure. You will not: (a) provide any false personal information as part of your Account information or in connection with the Takada Service; (b) create an Account for anyone other than yourself; (c) create or use more than one Account at any given time; (d) transfer your Account to anyone else; (e) permit others to use your Account; or (f) use or access any other person’s Account.
2. User Content
2.1 License. You hereby grant to Wayne & Malcolm an irrevocable, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use (a) your Public Content in any manner and for any purpose and (b) your User Content for the purpose of providing you the Takada Service. "User Content" means any and all messages, comments, annotations, notes, stickies, and other content and information that a user submits to, posts on, or makes available to the Takada Service, excluding Public Content. "Public Content" means any and all messages, comments, annotations, notes, and other content and information that a user submits to, posts on, or makes available to areas designated as public areas on the Takada Service or the Takada Store. You represent and warrant that: (a) you have the right to grant the foregoing license and to post, submit, and make available your User Content and Public Content; and (b) your User Content and Public Content will not infringe, misappropriate, or violate any third party rights (including any intellectual property rights). You are solely responsible for your User Content and Public Content.
2.2 User Guidelines. You represent, warrant, and agree that:
- you will comply with all applicable laws, including privacy laws and intellectual property laws;
- you will not post inappropriate, inaccurate, or objectionable content;
- you will not bully, harass or advocate harassment of another user or person;
- you will not solicit passwords or Personal Data of any kind for commercial or unlawful purposes from other users, or engage in commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes;
- you will not post content that contains "junk mail" or "chain letters";
- you will not post content that is obscene or that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- you will not post or upload any virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access, to the Takada Service or the Takada Store;
- you will not use the Takada Service or the Takada Store to do or promote anything that is unlawful, illegal, misleading, defamatory, or libelous;
- you will not promote, or upload or post anything that contains, an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such or not); and
- your use of the Takada Store, Takada Service, and your User Content and Public Content will not otherwise create liability for Wayne & Malcolm.
If you violate the guidelines listed above or any other guidelines posted on the Takada Store or the terms of this Agreement, or if Wayne & Malcolm believes that any of your conduct or content is offensive or illegal, violates the rights of, harms, or threatens the safety of third parties, or may create liability for Wayne & Malcolm or third parties, Wayne & Malcolm reserves the right (but is not obligated) to investigate and take appropriate legal action in its sole discretion, including removing such content from the Takada Service or the Takada Store, notifying the appropriate authorities regarding the source of such content, barring violators from accessing the Takada Service or the Takada Store, and terminating the Accounts of such violators.
3. Takada Store Terms of Sale. Wayne & Malcolm makes available Digital Content for purchase by you through the Takada Store (each content item designated as such by Wayne & Malcolm, an "Item"). Prices are displayed with the applicable Item. Prices and availability of all Items are subject to change at any time. Wayne & Malcolm reserves the right to discontinue or suspend the provision of any Item at any time. You must provide valid debit card billing information or other payment information to purchase a license to an Item. You agree that Wayne & Malcolm may charge fees to your debit card or other payment account for licenses to Items that you purchase and that you will pay all applicable fees assessed to your Account. Our prices are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies and duties. In the event of a conflict between the prices displayed for any Item, the price shown at the time you check out your order will be the price charged to you. Wayne & Malcolm is not responsible for pricing errors; however, if the price you pay for an Item is higher than its true price, Wayne & Malcolm, in its sole discretion, may grant you a credit or refund for the amount exceeding the true price. On occasion, technical problems may prevent or unreasonably delay download of the Item for which you have purchased a license hereunder, in which case your sole and exclusive remedy will either be replacement or refund of the price paid, as determined by Wayne & Malcolm. Upon your download of an Item, you are responsible for any loss, damage, or deletion of that Item, and Wayne & Malcolm will have no liability to you for any loss, damage, or deletion of that Item. You may return any Item to Wayne & Malcolm for a refund of the purchase price (including any tax paid) for any reason within fifteen (15) days of your purchase of a license to that Item, if you have complied with all publisher return conditions for the applicable Item, by following the procedure set forth on the Takada Store. If you return any Item, all licenses with respect to that Item will automatically terminate. You grant Wayne & Malcolm the right to disable access to any Item or remotely remove that Item from your Takada Account and expressly consent to such disablement or removal, provided that Wayne & Malcolm will not exercise such right unless you return the applicable Item. Each Item is deemed irrevocably accepted fifteen (15) days after download thereof.
IF YOU PURCHASE DIGITAL CONTENT FROM ANYWHERE OTHER THAN THE TAKADA STORE (e.g., THE APPLE STORE), THEN THOSE TERMS WILL APPLY TO YOUR PURCHASE, INCLUDING ANY NO-RETURN POLICIES.
4. Proprietary Rights
4.1 Use of the Takada Service. Subject to the terms and conditions of this Agreement, Wayne & Malcolm grants you, during the term of this Agreement, permission to access and use the Takada Service solely for your personal, non-commercial purposes.
4.2 Use of Items. Subject to the terms and conditions of this Agreement and the payment of all applicable fees for the Item, Wayne & Malcolm grants you a non-exclusive, non-transferable, revocable license to download and use each Item in accordance with the Usage Rules posted on the Takada Store solely for your personal, non-commercial purposes as part of the Takada Service during the period designated for such Item on the Takada Store. Additional terms relating to the Items may be posted on the Takada Store. Usage Rules may include limitations on the rental period, your ability to cut, copy and paste, or print portions of an Item, the number of applications from which you can access an Item, geographic territories, and reading aloud functionality.
4.3 Restrictions. You will not: (a) permit any third party to access or use the Takada Store or Takada Service using your Takada Account; (b) rent, lease, loan, sell, license, or transfer the Takada Store or Takada Service to any third party or exploit the Takada Store or Takada Service for commercial purposes; (c) interfere with, disrupt, alter, translate, or modify the Takada Store or Takada Service or any part thereof, or create an undue burden on the Takada Store or Takada Service or the networks or services connected to the Takada Store or Takada Service; (d) reverse engineer, decompile, disassemble, or reverse compile the Takada Store or Takada Service; (e) introduce software or automated agents or scripts to the Takada Store or Takada Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Takada Store or Takada Service; (f) transmit, modify, publish, sell, rent, lease, loan, distribute, license, or otherwise transfer any Item or any portion thereof or rights therein; (g) display, perform, or reproduce any Item except as permitted under Section 4.2; (h) remove or modify any proprietary notices or labels on any Item; or (i) bypass, modify, defeat, circumvent, or tamper with security or digital rights management features that protect or limit access to or use of any Item.
4.4 Ownership. Wayne & Malcolm and its licensors own the Takada Store, Takada Service, the Items, and all other content (except for your User Content and Public Content) contained within the Takada Store and Takada Service, and all intellectual property rights relating to the foregoing. Any unauthorized reproduction, modification, distribution, transmission, display, or performance of any portion of the Takada Store, Takada Service, the Items, or any other content (except for your User Content and Public Content) contained in the Takada Store or Takada Service is strictly prohibited. Wayne & Malcolm and its licensors reserve all rights not expressly granted under this Agreement. There are no implied licenses in this Agreement. Despite any use of the terms "purchase," "buy," "sell," "sale," or similar terms, all Items and the applicable copies thereof are licensed to you under this Agreement, not sold.
4.5 Feedback. By providing comments, suggestions, and other feedback relating to the Takada Store, Takada Service, Items, Wayne & Malcolm’s business, and Wayne & Malcolm’s current and future products and services (collectively, "Feedback") to Wayne & Malcolm, you grant to Wayne & Malcolm an irrevocable, non-exclusive, royalty-free and fully paid, worldwide, transferable license, with the right to sublicense through multiple tiers, to reproduce, distribute, modify, publicly display, publicly perform, prepare derivative works of, transmit, and otherwise use and exploit such Feedback, in any format or medium now known or developed in the future, for any purpose and in any manner. Wayne & Malcolm will have no obligation to compensate you in connection with any Feedback.
5. Interaction with Other Users. You are solely responsible for your interactions with other users. Wayne & Malcolm reserves the right, but has no obligation, to monitor or take any action regarding disputes between you and other users. To the extent permitted under applicable law, you hereby release Wayne & Malcolm from any and all claims or liability related to: (a) any content posted on the Takada Service or the Takada Store; or (b) the conduct, whether online or offline, of any other user.
7. Third Party Applications. Wayne & Malcolm may permit third parties to develop applications for use in the Takada Application and to provide services for use with such applications ("Third Party Applications and/or Services"). Each Third Party Application and/or Service is provided subject to the terms of the third party providing such Third Party Application and/or Service. Wayne & Malcolm is not a party to such terms, and such third party is solely responsible for the Third Party Application and/or Service it provides and any associated warranties.
8. Availability and Modification of Takada Store and Takada Service. Wayne & Malcolm reserves the right, from time to time, to suspend, modify, or discontinue the Takada Store and/or Takada Service, in whole or in part, with or without notice. You agree that Wayne & Malcolm will not be liable to you or to any third party for any modification, discontinuance, or suspension of the Takada Store and/or Takada Service, in whole or in part. You grant Wayne & Malcolm the right to disable access to any Item or remotely remove that Item from your Takada Account and expressly consent to such disablement or removal, provided that Wayne & Malcolm will not exercise such right unless Wayne & Malcolm determines that such Item may create liability for, or harm to, you, Wayne & Malcolm, or any third party, in which case your sole and exclusive remedy will be a refund of the Item price (including any tax paid).
9. Term and Termination. If you fail to comply with any of the provisions of this Agreement, Wayne & Malcolm, at its sole discretion and without notice to you, may terminate this Agreement. You may terminate this Agreement by sending an e-mail to email@example.com. Upon such termination by either party, your right to access and use the Takada Store and Takada Service will terminate immediately. You will remain liable for all amounts due under your Account up to and including the date of termination and you may keep your Account open for the sole purpose of accessing Items purchased by you prior to termination provided that you continue to comply with the terms of the license thereto, including the Usage Rules. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities relating to such termination and that Wayne & Malcolm may delete your User Content and Public Content from its servers and databases upon such termination. Notwithstanding any termination, the following provisions of this Agreement will remain in effect: Sections 2.1, 4.3, 4.4, 4.5, 5, and 8 through 19.
10. Warranty Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, WAYNE & MALCOLM (AND ITS SUPPLIERS) PROVIDES THE TAKADA STORE, TAKADA SERVICE, ITEMS, AND ALL OTHER INFORMATION AND CONTENT ON THE TAKADA STORE AND OTHERWISE IN CONNECTION WITH THIS AGREEMENT "AS-IS" AND "AS AVAILABLE" AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. USE OF THE TAKADA STORE, TAKADA SERVICE, ITEMS, AND ALL OTHER INFORMATION OR CONTENT ON THE TAKADA STORE OR OTHERWISE PROVIDED BY WAYNE & MALCOLM (OR ITS SUPPLIERS) IN CONNECTION WITH THIS AGREEMENT IS AT YOUR OWN RISK. WAYNE & MALCOLM (AND ITS SUPPLIERS) MAKES NO WARRANTY THAT THE TAKADA STORE, TAKADA SERVICE, ITEMS OR ANY OTHER INFORMATION OR CONTENT ON THE TAKADA STORE OR PROVIDED BY WAYNE & MALCOLM (OR ITS SUPPLIERS) IN CONNECTION WITH THIS AGREEMENT WILL: (A) BE COMPLETE, CURRENT, UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, RELIABLE, OR ERROR-FREE; OR (B) PROVIDE ANY SPECIFIC RESULTS OR MEET YOUR REQUIREMENTS. YOU AGREE THAT WAYNE & MALCOLM IS NOT RESPONSIBLE FOR ANY FAILURE TO BACK UP ANY PORTION OF ITEMS DOWNLOADED BY YOU OR YOUR USER CONTENT OR PUBLIC CONTENT. WAYNE & MALCOLM DOES NOT ASSUME ANY OBLIGATION TO MONITOR ACTIVITIES CONDUCTED ON THE TAKADA STORE OR TAKADA SERVICE.
11. Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, (A) WAYNE & MALCOLM WILL NOT BE LIABLE FOR ANY LOSS OF USE OR LOST PROFITS OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE TAKADA STORE, TAKADA SERVICE, ITEMS, OR ANY OTHER INFORMATION OR CONTENT ON THE TAKADA STORE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF WAYNE & MALCOLM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) WAYNE & MALCOLM’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE TAKADA STORE, TAKADA SERVICE, ITEMS, AND ANY OTHER INFORMATION AND CONTENT ON THE TAKADA STORE AND OTHERWISE IN CONNECTION WITH THIS AGREEMENT WILL AT ALL TIMES BE LIMITED TO, WITH RESPECT TO AN ITEM, TO THE AMOUNT PAID BY YOU FOR THAT ITEM, AND, WITH RESPECT TO ALL OTHER CLAIMS, ONE THOUSAND NAIRA (=N= 1,000). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL WAYNE & MALCOLM’S SUPPLIERS HAVE ANY LIABILITY UNDER OR RESULTING FROM THIS AGREEMENT.
12. User Indemnification. You agree to indemnify and hold Wayne & Malcolm, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any and all losses, damages, liabilities, claims, demands, costs, or expenses, including reasonable attorneys’ fees, relating to your: (a) User Content or Public Content; (b) use of the Takada Service; (c) breach of this Agreement; (d) breach or inaccuracy of any representation or warranty made under this Agreement; or (e) violation of any applicable law or any right of any third party.
13. Copyright Policy. You may not post, distribute, or reproduce in any way any Wayne & Malcolm copyrighted material, trademarks, or other proprietary information unless you have the right to do so. It is Wayne & Malcolm’s policy to, in its sole discretion, terminate the Account of any user who repeatedly infringes copyright rights of Wayne & Malcolm or third parties. If you believe that your work has been copied and posted on the Takada Service or the Takada Store in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Takada Service or the Takada Store of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Wayne & Malcolm’s Copyright Agent for notice of claims of copyright infringement can be reached by writing to the following email at firstname.lastname@example.org.
15. Electronic Communications. The communications between you and Wayne & Malcolm use electronic means, whether you use the Takada Service or the Takada Store or send us emails, or whether Wayne & Malcolm posts notices on the Takada Service or the Takada Store or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Wayne & Malcolm in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Wayne & Malcolm provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
16. Governing Law; Arbitration. This Agreement, and any claim, dispute or controversy relating to this Agreement, will be governed by the laws of Nigeria, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in Lagos, Nigeria and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except that: (i) a party bringing an action may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (a) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (b) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (c) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; and (ii) Wayne & Malcolm may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
17. General. The parties are independent contractors. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by Wayne & Malcolm will be effective only if in writing. Any waiver or failure by Wayne & Malcolm to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You acknowledge that the Takada Store and Takada Service contain valuable trade secrets and proprietary information of Wayne & Malcolm, that any actual or threatened breach of Section 4 of this Agreement will constitute immediate, irreparable harm to Wayne & Malcolm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. "Includes" and "including" are not limiting. This Agreement and the documents referred to herein or incorporated by reference constitute the final, complete, and exclusive agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
19. Trademark and Copyright Notice. TAKADA, the TAKADA logo, and other names, slogans, graphics, logos, and trade names used on the Takada Service are the trademarks of Wayne & Malcolm and may not be used without Wayne & Malcolm’s permission. Third-party trademarks, service marks, and trade names that may appear on the Takada Service or the Takada Store are the property of their respective owners. Copyright © 2011, Wayne & Malcolm.