This Terms of Service (“TOS”) is a legally binding agreement made by and between Black Sand Publishing Inc. (“Black Sand Publishing”) and you, personally and, if applicable, on behalf of the entity for whom you are using this web site (collectively, “you”). This TOS governs your use of Black Sand Publishing’s web site (“Web Site”), so please read it carefully.
BY ACCESSING OR USING ANY PART OF THE WEB SITE, YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS TOS. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEB SITE.
INTERNET TECHNOLOGY AND THE APPLICABLE LAWS, RULES, AND REGULATIONS CHANGE FREQUENTLY. ACCORDINGLY, BLACK SAND PUBLISHING RESERVES THE RIGHT TO MAKE CHANGES TO THIS TOS AT ANY TIME. YOUR CONTINUED USE OF THE WEB SITE CONSTITUTES ASSENT TO ANY NEW OR MODIFIED PROVISION OF THIS TOS THAT MAY BE POSTED ON THE WEB SITE.
- Using The Web Site.
- Eligibility. Except as expressly provided below, the Web Site may only be used by individuals and entities who can form legally binding contracts under applicable law.
- License and Restrictions. Subject to the terms and conditions of this TOS, you are hereby granted a limited, non-exclusive right to use the content and materials on our Web Site in the normal course of your use of the Web Site. Black Sand Publishing will retain ownership of its intellectual property rights and you will not obtain any rights therein by virtue of this TOS or otherwise, except as expressly set forth in this TOS. You will have no right to use, copy, display, perform, create derivative works from, distribute, transmit, or sublicense materials or content available on the Web Site, except as expressly set forth in this TOS.
- Prohibited Conduct. In your use of the Web Site, you may not: (i) infringe any patent, trademark, trade secret, copyright, right of publicity, or other right of any party; (ii) disrupt or interfere with the security or use of the Web Site, or any web sites linked to the Web Site; (iii) interfere with or damage the Web Site, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (iv) impersonate another person or entity, misrepresent your affiliation with a person or entity, including (without limitation) Black Sand Publishing, or use a false identity; (v) attempt to obtain unauthorized access to the Web Site; (vi) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail, or any other type of unsolicited solicitation; (vii) collect, manually or through an automatic process, information about other users without their express consent, or other information relating to the Web Site; (viii) submit false or misleading information to Black Sand Publishing; (ix) violate any law, rule, or regulation; (x) engage in any activity that interferes with any third party’s ability to use or enjoy the Web Site; (xi) “deep link” to portions of the Web Site; (xii) frame, inline link, or similarly display any Black Sand Publishing property, including, without limitation, the Web Site; (xiii) use any Black Sand Publishing logo or its other trademarks as part of a link without express written permission; or (xiv) assist any third party in engaging in any activity prohibited by this TOS.
- Intellectual Property Rights.
- Copyright. All materials on the Web Site, including without limitation, the logos, design, text, graphics, other files, and the selection and arrangement thereof are either owned by Black Sand Publishing or are the property of Black Sand Publishing’s suppliers, licensors or artists. You may not use such materials without permission.
- Trademarks. Black Sand Publishing is a trade name owned by Black Sand Publishing Inc. The trademarks on the Web Site are owned by Black Sand Publishing or its licensors. Page headers, custom graphics, button icons and scripts are trademarks or trade dress of Black Sand Publishing. You may not use any of these trademarks, trade dress, or trade names without the express written permission of Black Sand Publishing.
- Manuscripts and Comments.
- Artwork. Black Sand Publishing does not accept unsolicited artwork. If you send unsolicited artwork, Black Sand Publishing will not hold it in confidence, pay any compensation to you or any third party, or undertake any other obligation relating to it. Further, Black Sand Publishing reserves the right, in its sole discretion, to return it to you at your cost.
- Comments. All comments, feedback, suggestions, ideas, and other submissions that you disclose, submit, or offer to Black Sand Publishing in connection with your use of the Web Site (collectively, “Comments”) will become our exclusive property. Such disclosure, submission, or offer of any Comments shall constitute an assignment to Black Sand Publishing of all worldwide right, title, and interest in all patent, copyright, trademark, and all other intellectual property and other rights whatsoever in and to the Comments and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory relating to submissions. Thus, Black Sand Publishing will own exclusively all such right, title, and interest and shall not be limited in any way in the use, commercial or otherwise, of any Comments. You should not submit any Comments to Black Sand Publishing if you do not wish to assign such rights. Black Sand Publishing is and will be under no obligation: (i) to maintain any Comments in confidence; (ii) to pay to you or any third party any compensation for any Comments; or (iii) to respond to any Comments. You are and shall remain solely responsible for the content of any Comments you make.
- Indemnification. You agree to hold Black Sand Publishing and its employees, representatives, agents, attorneys, affiliates, directors, officers, managers, and shareholders (the “Indemnified Parties”) harmless from any damage, loss, cost, or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any third party claim, demand, or action (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach of any provision of this TOS by you or (ii) arising from, related to, or connected with your use of the Web Site. If you are obligated to provide indemnification pursuant to this provision, Black Sand Publishing may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limitation of the foregoing, you may not settle, compromise, or in any other manner dispose of any Claim without the consent of Black Sand Publishing.
- DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS.
- DISCLAIMER OF WARRANTIES. BLACK SAND PUBLISHING PROVIDES THE WEB SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. BLACK SAND PUBLISHING DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, ITS USE, OR ANY INFORMATION ON IT: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. BLACK SAND PUBLISHING MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
- EXCLUSION OF DAMAGES. BLACK SAND PUBLISHING WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE WEB SITE, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
- LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF BLACK SAND PUBLISHING ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOS OR THE WEB SITE EXCEED $100.
- Force Majeure. Black Sand Publishing will not be liable for failing to perform under this TOS because of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to Black Sand Publishing to perform, fire, terrorism, natural disaster, or war.
- Governing Law. Any action connected with, arising from, or relating to this Agreement will be filed only in a federal or state court located in Honolulu, Hawaii, and the parties irrevocably consent and submit to the personal jurisdiction of such courts. This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii, without regard for its conflict of law principles.
- Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Web Site, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
- Changes to the Web Site. Black Sand Publishing may, in its sole discretion, change, modify, suspend, make improvements to, or discontinue any aspect of the Web Site, temporarily or permanently, at any time without notice to you, and Black Sand Publishing will not be liable for doing so.
- Termination. Black Sand Publishing will have the right to terminate your access to the Web Site if it reasonably believes you have breached any of the terms and conditions of this TOS. Following termination, you will not be permitted to use the Web Site. If your access to the Web Site is terminated, Black Sand Publishing reserves the right to exercise whatever means it deems necessary to prevent unauthorized access to the Web Site, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider. This TOS will survive indefinitely unless and until Black Sand Publishing chooses to terminate them, regardless of whether any account you open is terminated by you or Black Sand Publishing or if you have the right to access or use the Web Site.
- Additional Terms. This TOS contains the entire understanding of you and Black Sand Publishing regarding the use of the Web Site, and supersedes all prior and contemporaneous agreements and understandings between you and Black Sand Publishing relating thereto. This TOS will be binding upon each party hereto and its successors and permitted assigns. This TOS and all of your rights and obligations under them may not be assignable or transferable by you without the prior written consent of Black Sand Publishing. No failure or delay by a party in exercising any right, power, or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this TOS. You and Black Sand Publishing are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.