Terms and Conditions

MEMBERSHIP AGREEMENT
LEGAL TERMS – PLEASE READ CAREFULLY
1. AGREEMENT
1.1 General. CREATIVE BYLINE, Inc. (“CREATIVE BYLINE”) OWNS AND OPERATES THE WEBSITE LOCATED AT CREATIVEBYLINE.COM (THE “SITE”). THIS MEMBERSHIP AGREEMENT (THE “AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH CREATIVE BYLINE WILL PROVIDE CERTAIN SERVICES OFFERED AT THE SITE (THE “SERVICES”) TO YOU (“USER”). EACH USER MUST ACCEPT THIS AGREEMENT AS A CONDITION OF USING THE SITE AND SERVICES. BY ACCESSING OR OTHERWISE USING THE SITE OR SERVICES, USER ACCEPTS THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT. IF USER DOES NOT AGREE TO THE TERMS, THEN USER MAY NOT ACCESS OR USE THE SITE AND SERVICES.
1.2 Authority. User represents that he or she is at least 16 years of age and is authorized to enter into this Agreement.
1.3 Updates. Creative Byline may change the terms and conditions of this Agreement from time to time. Creative Byline may, but is not required to, notify User by email, online via a Creative Byline website, or other electronic notice. User may view the most-current version of this Agreement at creativebyline.com/terms.aspx. User’s continued use of the Site and Services constitutes User’s acceptance of those changes.
2. SERVICE ACCOUNT
2.1 Registration Data. User must use his or her actual surname and given name when registering with Creative Byline. Assumed names, corporate identities, or fictitious names may not be used. User represents that all information it provides to Creative Byline is accurate, including name, address, and credit card information. User will keep such information updated and will notify Creative Byline of any changes promptly by modifying information contained on the "My Profile" or "My Portfolio" tab and "Account" link, as applicable, when signed in to Creative Byline. Registration data and certain other information about User are subject to Creative Byline’s Privacy Policy.
2.2 User Service Account. Upon User’s initial registration with Creative Byline, Creative Byline will activate an account, which User may use to access and use the Site and Services (the “Service Account”). Creative Byline will issue a user ID name and password for the Service Account. User assumes sole responsibility for the security of the Service Account user ID name and password and for any unauthorized use of the Site and Service Account. Creative Byline will have no responsibility for any loss of a password, and Creative Byline will reissue a password only in accordance with Creative Byline’s then-current security procedures. Any distribution by User of the user ID name and password may result in cancellation of User’s right to use the Services and in additional charges for unauthorized use. Creative Byline will have the right to monitor access and other information pertaining to User and the Service Account. User agrees to (a) notify Creative Byline immediately of any unauthorized use of the Service Account or any other breach of security and to (b) exit the Service Account at the end of each session.
2.3 User Responsibility. User is responsible for all access to and use of the Site and Service Account and for any fees incurred through the Service Account. Creative Byline will not be liable for any loss or damage arising from User’s failure to comply with this Section 2. User agrees that all activity conducted under its Service Account is authorized and approved by User. User will comply with all applicable laws and regulations in using the Site and Services.
2.4 Equipment. User is responsible for providing all hardware, devices, and software necessary to access and use the Site and Services. User is responsible for the compatibility of its system with the Site and Services. The fees charged by Creative Byline do not include fees that User may incur from third-party carriers or service providers to use the Site and Services.
3. ACCESS AND POSTINGS
3.1 Access. In consideration of the payment of the applicable fees, Creative Byline grants to User a limited, nontransferable, personal license to access and use the Site solely for purposes of using the Services provided by Creative Byline. Creative Byline reserves all rights not expressly granted to User hereunder. User understands that the license granted herein transfers neither title nor proprietary rights to User with respect to the Site or Services.
3.2 Projects. The term “Project" means the items that User must upload to the Site for a particular work of authorship (e.g., book manuscript, magazine article, screenplay). The Project's requirements will be specified on the Site.
3.2.1 Authors/Co-Authors Only. Projects posted to the Site must be made by the author or co-author. User may not post a Project on behalf of another party. By posting a Project on the Site, User grants to Creative Byline and its affiliates a royalty-free, nonexclusive right and license to display, reformat, and distribute the Project and perform such other actions as may be contemplated on the Site. User may rescind these rights by using the "Archive" function available on the Site. Subject to the foregoing, User retains any and all rights that may exist in the Project. User understands that the mere posting of a Project does not mean that it will be submitted to any publisher.
3.2.2 First-Reader Reviews. The results of the first-reader review, performed by Creative Byline personnel, are binding and not negotiable. The amount of feedback from the first reader review can be selected by the User, but in any case does not constitute a full Project critique, but instead abbreviated feedback on areas of the Project that need improvement by the User prior to submission to publishers.
3.2.3 Publisher Criteria. User acknowledges that publishers have the ability to control the criteria of the types of Projects they are willing to have submitted to them. An example of Project criteria includes genre. In addition, publishers have the right to control the criteria for the types of users who can submit Projects to them. Examples of user criteria include, but are not limited to: whether the user is a published author, and whether the user is a member of a specific writer association. Publishers can change criteria at any time. User acknowledges a publisher is under no obligation to view or read any portion of the Project, even if User meets the submission criteria of that publisher, the User’s Project meets the Project submission criteria of that publisher, and Creative Byline submits the Project to the publisher selected by User. If a publisher reads any portion of the submitted Project, the publisher is under no obligation to acquire, publish, or distribute the submitted Project in whole or in part.
3.3 No Direct Contact. User shall not contact (except through the Site) any editor or publisher represented on the Site unless requested to do so by that editor or publisher.
3.4 Special Possibilities. One or more opportunities to use a Project (each a "Possibility") may be presented on the Site to Users from time to time. Each Possibility represents a potential use (in addition to subscribing publishers) for a Project, or other products and services that may be of interest to User. A Possibility may (a) be subject to terms of use, rules, and/or policies in addition to or in lieu of these Terms and Conditions; and (b) be offered by Creative Byline or by third parties. If User chooses to participate in a Possibility, User agrees that his or her use of the Possibility will be subject to such additional or separate terms of use, rules, and/or policies, which may require User's payment of additional fees. Creative Byline will use reasonable efforts to limit Possibilities to products and services that are reputable. However, Creative Byline does not represent or warrant than any Possibility will be suitable or beneficial or User or that any Possibility will meet User's needs and expectations. User is solely responsible for determining whether a Possibility will benefit User. If User decides to participate in a Possibility, then User does so at his or her own risk.
3.5 Linked Sites. In addition to providing Possibilities, Creative Byline may provide links to other third-party sites. These links are not under Creative Byline's control, and Creative Byline is not responsible for the content of any linked site or any link contained in a linked site. Creative Byline reserves the right to terminate any link or linking program at any time. Creative Byline provides such links only as a convenience to User. Creative Byline has not endorsed, tested, or verified any information, programs, companies, or products on sites to which it links. If User decides to access any third-party sites linked to this Site, then User does so entirely at User's own risk.
3.6 Copyright Infringement. Different users may submit materials that may be similar in nature. Simply because there are similarities does not mean that there is a copyright infringement. There is no infringement if the materials have been independently developed. If User believes that the materials posted by User on the Site have been copied in a way that constitutes copyright infringement, User should notify Creative Byline’s copyright agent in accordance with Digital Millennium Copyright Act – Registered Agent.
4. TERMS OF USE
4.1 Stated Uses. The Services are provided in accordance with the options and uses outlined on the Site only. The viewing, printing, or downloading of any content, graphic, form, or document from the Site grants User only a limited, nonexclusive license for use solely by User for the stated purposes and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. No part of any content, form, or document may be reproduced in any form, forwarded to multiple third parties, and/or incorporated into any information retrieval system, electronic or mechanical, other than for User’s personal use for the purposes described on the Site, and even in such event, User may not under any circumstances use more than 5% of the total content from any single database or feature.
4.2 Security. User shall not violate or attempt to violate the security of the Site, or interfere with any other user's access to, or use of, the Site, by including, without limitation, (a) accessing data not intended for such User or logging into a server or account that the User is not authorized to access, (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with service to any user, host or network, including, without limitation, submitting a virus to the Site, overloading, "flooding", "spamming", "mailbombing" or "crashing", (d) sending unsolicited e-mail, including promotions and/or advertising of products or services, or (e) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Creative Byline will investigate occurrences that may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
4.3 Passive Conduit. Creative Byline does not represent, guarantee, or verify the truthfulness, accuracy, or reliability of information or communications posted by users or endorse any opinions expressed by other users of the Site and Services. Creative Byline acts as a passive conduit for the online distribution and publication of user-submitted information and has no obligation to screen or verify communications or information in advance and is not responsible for screening or monitoring material posted by users (other than Projects). If notified by a user of communications which allegedly do not conform to these terms, Creative Byline may investigate the allegation and determine in good faith and its sole discretion whether to remove or request the removal of the communication. Creative Byline has no liability or responsibility to users for performance or nonperformance of such activities. Creative Byline reserves the right to expel users and prevent their further access to the Site for violating the terms or the law and the right to remove communications which are abusive, illegal, or disruptive. Creative Byline may take any action with respect to user-submitted information that it deems necessary or appropriate in its sole discretion if it believes it may create liability for Creative Byline or may cause Creative Byline to lose (in whole or in part) the services of its ISPs or other suppliers.
4.4 Prohibited Activities. User shall not transmit, distribute or store material (a) in violation of any applicable law, rule or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property right of others or violate the privacy, publicity or other personal rights of others, or (c) that is defamatory, obscene, threatening, abusive, hateful or embarrassing to any person or entity. Without limiting the generality of the foregoing, the following practices and activities are specifically prohibited:
• Posting any incomplete, false, or inaccurate biographical information or information which is not User’s own accurate information.
• Posting any franchise, chain letter pyramid scheme, "club membership," distributorship, or sales representative agency arrangement or other business opportunity which requires an up-front or periodic payment, pays commissions only (except for postings that make clear that the available job pays commission only and clearly describes the product or service that the job seeker would be selling, in which case such postings are permissible), requires recruitment of other members, sub-distributors or sub-agents.
• Spamming in any fashion, including, but not limited to, emailing User’s posted member page to multiple recipients unsolicited, and using email addresses obtained from Site resources (such as the contact and deals databases) to send multiple unsolicited e-mails.
• Posting, creating, or inserting any links to other websites or pages, other than User’s own pages hosted at the Site, including (without limitation) using your pages hosted at the Site as a "door" or "signpost" to any pages not hosted at the Site.
• Impersonating any other person.
• Deleting or revising any material posted by any other person or entity.
• Using any device, software, or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site (including, without limitation, by posting material that contains viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines or engines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information).
• Taking any action that imposes an unreasonable or disproportionately large load on this Site's infrastructure.
• Using or attempting to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search this Site other than the search engine and search agents available from Creative Byline on the Site and other than generally available third-party web browsers (e.g., Mozilla Firefox, Microsoft Internet Explorer).
• Attempting to decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site.
• Aggregating, copying, duplicating, reposting on other sites, or redistributing in any manner any of the materials or information available on the Site.
• Framing of or linking to any of the materials or information available on the Site.
Creative Byline reserves the right to monitor, review, retain and/or disclose any information resulting from or relating to your use of the Services as necessary to satisfy any applicable law, regulation, legal process or governmental request.
5. FEES AND PAYMENT TERMS
5.1 Fees. User will pay Creative Byline the fees as designated by Creative Byline.
5.2 Taxes. The fees set forth in this Agreement do not include any amounts for taxes. User will pay all applicable taxes levied by any tax authority based upon this Agreement, the Site and/or any Services, excluding any taxes based upon Creative Byline’s income.
6. EXCLUSIONS; LIMITATIONS OF LIABILITY
6.1 Disclaimer of Warranties. THE SITE AND ALL SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” USER’S USE OF THE SITE AND SERVICES IS AT USER’S SOLE RISK. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE DISCLAIMED. CREATIVE BYLINE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SITE OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM CREATIVE BYLINE OR THROUGH OR FROM THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.2 Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CREATIVE BYLINE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, EVEN IF CREATIVE BYLINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SITE OR SERVICES. IF USER IS DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICES, USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND SERVICES.
6.3 Limitation. NOTWITHSTANDING ANY DAMAGES THAT USER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF CREATIVE BYLINE UNDER ANY PROVISION OF THIS AGREEMENT, AND USER’S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, WILL BE LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY USER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
6.4 Applicability. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF CREATIVE BYLINE OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OF LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
6.5 Third-Party Acts. Creative Byline is not responsible for actions of third parties including, but not limited to, editors or publishers. User waives any liability of Creative Byline for any acts of third parties and agrees to hold Creative Byline harmless for any third-party acts. Such third-party acts include, but are not limited to, infringement of intellectual property rights including copyright infringement and theft of trade secrets.
6.6 Indemnification of Creative Byline. User will indemnify, defend and hold Creative Byline, its affiliates and their officers and agents harmless from and against any and all third-party claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, penalties, fines, judgments, settlements, expenses (including attorneys’ and accountants’ fees and disbursements) and costs incurred by, borne by or asserted against Creative Byline to the extent such claims in any way relate to, arise out of, or result from (a) User’s use of the Site; (b) User’s violation of or breach of any provision of this Agreement or any applicable law or regulation; or (c) violation of any rights of any third party. User will have the sole right to conduct the defense of any claim or action and all negotiations for its settlement, unless the parties to this Agreement agree otherwise in writing.
7. TERM AND TERMINATION
7.1 Agreement Term. This Agreement will remain in full force and effect until terminated as set forth in this Agreement.
7.2 Termination by Creative Byline. Creative Byline may terminate this Agreement and/or terminate or suspend any or all of User’s access to or a portion of the Site or Services, without notice and without liability to User.
7.3 Termination by User. User may terminate this Agreement at any time by contacting Creative Byline Client Services.
7.4 Refunds. The refund policy, if any, shall be posted on the Site. If no provision for refunds is explicitly stated, then there shall be no refunds for the Services.
8. GENERAL
8.1 Assignment. User may not assign, sublicense or otherwise transfer its rights, duties or obligations under this Agreement, in whole or in part, without the prior written consent of Creative Byline, which consent Creative Byline may withhold for any or no reason, in its sole discretion.
8.2 Amendments. No provision of this Agreement may be amended or modified except by a written document signed by duly authorized representatives of both parties.
8.3 Statute of Limitations. No party may commence an action under this Agreement more than two (2) years after the expiration of its term, or, in the event of a breach, more than one (1) year after the occurrence of the breach, or, in the event the breach is not discovered by the injured party when it has occurred, more than one (1) year after the breach could, in the exercise of due diligence, have been discovered by such party.
8.4 Governing Law and Venue. This Agreement will be governed by and interpreted according to the laws of the State of Michigan, without regard to conflicts of law principles. It will not be governed by the United Nations Convention on the International Sale of Goods. User hereby consents to the exclusive jurisdiction by the state and federal courts sitting in the State of Michigan.
8.5 Severability. If any provision of this Agreement is prohibited or unenforceable by any applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions.
8.6 Entire Agreement. This Agreement embodies the entire agreement and understanding between Creative Byline and User with respect to the subject matter of this Agreement and supersedes all prior oral or written agreements and understandings relating to the subject matter of this Agreement. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement will affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. The terms and conditions of any purchase order or other instrument issued by User which are in addition to or inconsistent with this Agreement will be of no effect and will not be binding on Creative Byline.
USER HAS READ THIS AGREEMENT AND UNDERSTANDS USER’S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT. USER EXPRESSLY AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
08-11-2009