Terms of Service
Last Updated: May 26th, 2018
Consent to Marketing
By accepting these terms as stated above, you hereby consent:
- To receive or continue to receive Ernest Chan e-mail newsletters including news on new features and new or updated publications.
- You may opt-out at any time using the opt-out button in the e-mails or by changing your accounts settings when logged in.
Eligibility and Assent to Terms
Welcome to ErnestChan.com! The following Terms of Service for ErnestChan.com website, software applications made available by Ernest Chan from the website or via a third party (“Software”), and any application programming interface (“API”) or other technology or services made available by Ernest Chan via the website or Software (collectively, the “ErnestChan.com”) is a legal contract between you, either an individual of at least 13 years of age or a single legal entity (“You” or, collectively, “Users”), and Ernest Chan regarding your use of ErnestChan.com (“Terms”). ErnestChan.com is not available to persons under the age of 13 or to any users previously removed from ErnestChan.com by Ernest Chan. Also, if you are between age 13 and the age of majority in your jurisdiction your legal guardian must review and agree to these Terms.
These Terms provide that all disputes between you and Ernest Chan will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the “Arbitration Agreement” section below for the details regarding your agreement to arbitrate any disputes with Ernest Chan.
YOU ACKNOWLEDGE THAT YOU (OR, IF THE USER IS BELOW THE AGE OF MAJORITY, YOU, AS LEGAL GUARDIAN OF THE USER) HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE ISSUU SERVICE. IF YOU ARE USING OR OPENING AN ACCOUNT WITH ISSUU ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A “SUBSCRIBING ORGANIZATION”) THEN YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS AND AGREE TO THESE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
BY CHECKING THE “I ACCEPT THE TERMS OF SERVICE” BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING ANY PORTION OF THE ISSUU SERVICE, YOU ASSENT TO AND AGREE TO BE BOUND BY THESE TERMS AND REPRESENT THAT YOU ARE AT LEAST THE AGE OF MAJORITY IN YOUR JURISDICTION (OR, IF THE USER IS BETWEEN 13 AND THE AGE OF MAJORITY, YOU, ARE THE LEGAL GUARDIAN OF THE USER) AND HAVE NOT BEEN PREVIOUSLY REMOVED FROM THE ISSUU SERVICE.
Important Note: These Terms contain a class action waiver, which affects your rights under these Terms and with respect to any dispute you may have with Ernest Chan. You may opt out of the class action waiver as provided below.
We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms on a going-forward basis at any time by posting the amended Terms on our website. Please check these Terms periodically for changes. We may provide additional notice, such as an email message or a message within ErnestChan.com, of any material changes. Unless we state otherwise, changes are effective seven (7) days following the date posted on our website. If you continue to use ErnestChan.com after the effective date, you agree to the changes. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose.
We may also change or discontinue ErnestChan.com in whole or in part at any time, in our sole discretion. Such changes may include, but not be limited to, changes to the amount of storage space you have on ErnestChan.com at any time. Your continued use of ErnestChan.com indicates your agreement to the changes. If Ernest Chan discontinues a Paid Service (as defined in Section 3(a) below), Ernest Chan may either (a) provide a pro-rata refund of fees you pre-paid for such Paid Service or (b) continue to provide such Paid Service to you until the end of your then-current subscription for such Paid Service.
Your use of ErnestChan.com is subject to any and all additional terms, policies, rules, or guidelines applicable to ErnestChan.com or certain features of ErnestChan.com that we may post on or link to on ErnestChan.com (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on ErnestChan.com, subject to Section 1. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
Fees and Payment
- Paid Services. Some portions of ErnestChan.com may have fees associated with them (each, a “Paid Service”). You will have the opportunity to review and accept the fees that you will be charged before using a Paid Service. We may change fees for any portion of ErnestChan.com at any time. Unless otherwise stated, all fees are quoted in U.S. Dollars. One such Paid Service may be Ernest Chan’s Digital Sales Feature, further described in Section 5(f) below.
- Free Trial. Ernest Chan may make available a 14-day trial for a Paid Service without charge to you (“Free Trial”). You may be required to enter a Payment Method (defined below) in order to register for a Free Trial. The applicable Paid Service will automatically commence, and your Payment Method will be charged in accordance with Section 3(d), at the end of the Free Trial unless you log into your Ernest Chan account and cancel the Paid Service before the end of the Free Trial.
- Payment Information. You are solely responsible for paying all fees and applicable taxes associated with your ErnestChan.com account in a timely manner with a valid payment method. By electing to purchase or otherwise use a Paid Service, you authorize Ernest Chan or its third party payment processors to charge the credit card or other payment method identified by you (“Payment Method”), which you represent and warrant that you are authorized to use, all applicable fees for that Paid Service, including all applicable taxes. For purchases of one-time Paid Services (i.e., not subscriptions), your Payment Method will be billed for that Paid Service on the date that you make the purchase.
- Subscriptions. For purchases of subscriptions to Paid Services:
- Your “Subscription Billing Date” is the date when you purchase your first subscription to a Paid Service. For example, if you purchase your first subscription to a Paid Service on January 10th: (1) your Subscription Billing Date for your first monthly subscription and all other monthly subscriptions you purchase is the 10th of each month, (2) your Subscription Billing Date for your first annual subscription is January 10th of each year, and (3) your Subscription Billing Date for all subsequent purchases of annual subscriptions will be the next soonest 10th monthly calendar day after your date of purchase. Your Payment Method will be charged automatically on the Subscription Billing Date all applicable fees for the next month or year, as applicable.
- For any subscription to a Paid Service that you purchase after your Subscription Billing Date is established, your Payment Method will first be charged a pro-rata amount of the subscription fee for the number of days between the purchase date and the applicable Subscription Billing Date. Your Payment Method will then be charged the full periodic subscription fee for the next month or year, as applicable, on each Subscription Billing Date thereafter (or on the last day of the calendar month, if the last day of the calendar month occurs before the Subscription Billing Date for that month).
- Termination of Subscriptions. For any subscription to a Paid Service, that subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next period's (i.e., month’s or year’s) subscription fees to your Payment Method. We will bill the periodic subscription fee to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information).
- Third Parties and Fee Collection. You acknowledge and agree that any credit card and related billing and payment information that you provide to Ernest Chan may be shared by Ernest Chan with companies who work on Ernest Chan’s behalf, such as payment processors or credit agencies, solely for the purpose of checking credit, effecting payment to Ernest Chan and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or related charges. Check with your bank and credit card issuers for details. If your Payment Method for any Paid Service fails or your account is past due, (i) you agree to pay all amounts due on your Ernest Chan account upon demand, (ii) Ernest Chan may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us) and (iii) Ernest Chan reserves the right to either suspend or terminate your access to one or more ErnestChan.coms or your account with Ernest Chan. Upon any such termination, you will remain obligated to pay all outstanding fees and charges relating to your account and your use of ErnestChan.com before termination.
- Refunds. Any fees charged to your account are non-refundable except as expressly stated in these Terms. You agree to submit any dispute regarding any charge to your account in writing to Ernest Chan within thirty (30) days of the charge, otherwise that dispute will be waived and the charge will be final and not subject to challenge. Refunds (if any) made pursuant to a dispute, are at the discretion of Ernest Chan.
- Taxes. You are responsible for paying any governmental taxes imposed on your use of ErnestChan.coms, including sales, use, or value added taxes. If requested, you will promptly furnish to Ernest Chan the applicable receipts or certificates regarding such remittances as soon as reasonably practicable. To the extent that Ernest Chan is obligated to collect such taxes, Ernest Chan will charge your Payment Method or otherwise add the applicable to your billing account.
You may browse the Ernest Chan.com website without creating an account, subject to these Terms. In order to use the full features of ErnestChan.com, you must register for an account or log into ErnestChan.com using your Facebook login or login to another third party social media platform that we support (“Integrated Service”). Your use of any account with an Integrated Service is subject to any terms, conditions, and policies, including privacy policies, of that Integrated Service. When you use ErnestChan.com to upload, download, or purchase content or any products, services, or information from Ernest Chan, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your account or password. You agree that the information you provide to Ernest Chan on registration and at all other times will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of your account ID, password, or any credit, debit or charge card number, if applicable), then you must immediately notify Ernest Chan. You are solely liable for the losses incurred by Ernest Chan or others due to any unauthorized use of your ErnestChan.com account.
Permission to Use ErnestChan.com
- Definitions. As used in these Terms: (i) “Published Content” means digital assets uploaded and published on ErnestChan.com; (ii) “Pre-Publication Assets” means raw editorial content (e.g., text, images, layout information) uploaded to ErnestChan.com; and (iii) “User Submissions” means Published Content and Pre-Publication Assets, collectively.
- License. Subject to your compliance with the terms and conditions set out in these Terms, Ernest Chan hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to: (i) use ErnestChan.com to view, use and access User Submissions and other content made available via ErnestChan.com; (ii) participate in any other programs, services, or features of ErnestChan.com now or hereafter made available by Ernest Chan, including uploading of your User Submissions; (iii) download and install Software on the hardware for which the Software was created solely to exercise the rights granted in these Terms; and (iv) implement any API made available by Ernest Chan solely in accordance with that API’s documentation. Your use of ErnestChan.com must be for personal, non-commercial use only, except that Users who are commercial entities, government entities, or non-profit entities may use ErnestChan.com to make their Published Content available on ErnestChan.com, use the Service to collaborate on Pre-Publication Assets, or to integrate ErnestChan.com with the User’s website. For the avoidance of doubt, you are not entitled to any compensation from Ernest Chan for any reason, including but not limited to for User Submissions, unless otherwise specifically agreed in writing by Ernest Chan.
- Restrictions. You agree not to use or launch any automated system, including without limitation “robots,” “spiders,” and “offline readers,” that accesses ErnestChan.com in a manner that sends more request messages to ErnestChan.com 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 ErnestChan.com to collect or harvest any personally identifiable information or any data regarding activities on or usage of the Ernest Chan's Site.
- API. You also agree that for any API made available by Ernest Chan: (i) Ernest Chan makes no representations or warranties whatsoever regarding any API or any quality of service available via any API; (ii) Ernest Chan may restrict usage limits; (iii) you will not modify any content accessed via that API; (iv) Ernest Chan may terminate or deprecate any service or functionality available via an API at any time without notice or liability; and (v) use of some APIs may require obtaining an API key from Ernest Chan, and Ernest Chan may disable any key at any time without notice or liability.
- Digital Sales. Ernest Chan may offer a feature that allows a publisher to provide limited access to a select group of readers or subscribers to User Submissions that you submit (the “Digital Sales Feature”).
- Publisher terms. If you are a publisher providing such a customer access to your publication(s) via the Digital Sales Feature, in addition to the terms set forth below, you agree (a) the terms of the customer’s access to and use of such publication between the customer and you shall not contradict these Terms or impose any obligations or liability on Ernest Chan; and (b) you shall indemnify and hold Ernest Chan harmless from and against any third party claim arising out of or related to the Digital Sales Feature, including but not limited to any claim that your publication infringes the intellectual property rights or other rights of any third party. Without limiting any other of your obligations under these Terms, as a publisher you agree that your use of the Digital Sales Feature will be subject to (a) the terms of Appendix 1 hereto, (b) a valid user agreement between you and such readers and subscribers and (c) all applicable laws and regulations.
- Customer terms. If you are a customer of the Digital Sales Feature (i.e., a reader who purchases access to a third party publisher’s publication via Ernest Chan), you agree (a) to comply with the publisher’s terms regarding access to and use of such publication; and (b) to not make any claim against Ernest Chan or hold Ernest Chan liable in any way for your access and use of, or inability to access and use, such publication.
- Reservation of Rights. Ernest Chan reserves all rights not expressly granted in these Terms. You acknowledge that Ernest Chan may automatically issue upgraded versions of the software and systems comprising ErnestChan.com and, accordingly, may upgrade the version of ErnestChan.com that you are using. Ernest Chan reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of ErnestChan.com, including technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
- Pre-Publication Assets. By uploading Pre-Publication Assets to ErnestChan.com, you hereby grant to Ernest Chan a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, store, transfer, display, perform, reproduce, and distribute your Pre-Publication Assets on ErnestChan.com solely in order to enable you, and other Users specified by you, to work with those Pre-Publication Assets in the manner selected by you. You may invite non-Users to collaborate on Pre-Publication Assets, but in order to access the Pre-Publication Assets on the Service, each individual will be required to accept these Terms.
- Published Content. By uploading Published Content to ErnestChan.com, you hereby grant to Ernest Chan a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, license to host, transfer, display, perform, reproduce, distribute, and otherwise use your Published Content, in any media forms or formats, and through any media channels, now known or hereafter devised, including without limitation, RSS feeds, embeddable functionality, and syndication arrangements in order to distribute, promote or advertise your Published Content through ErnestChan.com. This license includes, for example, the right of Ernest Chan to engage a partner to distribute Published Content, whether or not such partner identifies Ernest Chan as a partner, to such partner’s customer base on a free or paid basis. This license also includes the right for Ernest Chan to convert your Published Content to Ernest Chan’s proprietary format, or such other file formats as may be used by Ernest Chan, and to display and make your Published Content available, in whole or in part (including excerpts), on ErnestChan.com in association with other Published Content, content or advertising. Subject to the license grant to other Users below, the license granted by you to Ernest Chan in this paragraph terminates as to a specific Published Content once you remove or delete such Published Content from ErnestChan.com.
- Representations. You are solely responsible for all of your User Submissions and you hereby recognize and affirm that ErnestChan.com is merely providing you the means to collaborate on and make available your User Submissions. Accordingly, you shall be solely responsible for each of your User Submissions and the consequences of uploading them. By uploading your User Submissions, you affirm, represent, and warrant that: (1) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize Ernest Chan and Ernest Chan's Users to use and distribute your User Submissions as necessary to exercise the licenses granted by you in this section and in the manner contemplated by Ernest Chan and these Terms; (2) your User Submissions do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (ii) your User Submissions do not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of ErnestChan.com. Violators of these third-party rights may be subject to criminal and civil liability. Ernest Chan reserves all rights and remedies against any Users who violate these Terms.
- Removal of User Submissions. Although Ernest Chan has no obligation to remove, screen, edit, or monitor any Published Content, Ernest Chan reserves the right, and has absolute discretion, to remove, screen, edit, or disable any User Submission at any time and for any reason without notice. In addition, although Ernest Chan has no obligation to remove, screen, edit, or monitor any Pre-Publication Assets, Ernest Chan reserves the right, and has absolute discretion, to remove, screen, edit, or disable any Pre-Publication Asset at any time and for any reason.
- No Endorsement. Further, you understand that when using ErnestChan.com you will be exposed to Published Content from a variety of sources, and that Ernest Chan is not responsible for the accuracy, content, usefulness, or intellectual property rights of or relating to such Published Content. You further understand and acknowledge that you may be exposed to Published Content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ernest Chan with respect thereto. Ernest Chan does not endorse any User Submissions or any opinion, recommendation or advice expressed in any User Submission, and Ernest Chan expressly disclaims any and all liability in connection with User Submissions. If notified by a User or a content owner of a User Submission that allegedly does not conform to these Terms, Ernest Chan may investigate the allegation and determine in its sole discretion whether to remove the User Submission, which it reserves the right to in accordance with these Terms. For clarity, Ernest Chan does not permit copyright infringing activities on ErnestChan.com.
- Referral Partners. Ernest Chan may as part of ErnestChan.com allow you to enable certain third parties such as printing houses that have contracted with Ernest Chan (each, a “Referral Partner”) to upload User Submissions on your behalf. If a Referral Partner refers you to Ernest Chan, and you wish to allow such Referral Partner to upload your User Submissions, in addition to agreeing to these Terms you will be required to opt-in and agree to additional terms (via a separate sign-in process) to allow Ernest Chan to provide to such Referral Partner certain information which may include but not be limited to your API upload key, your Customer ID and other relevant information. Without limiting any other provision in these Terms, you understand and agree that Ernest Chan shall have no responsibility for the content or quality of any User Submission provided by a Referral Partner. You must provide to Ernest Chan at least thirty (30) days’ prior written notice if you wish to remove a Referral Partner from your account.
You agree not to commit any act of the following prohibited conduct:
- use ErnestChan.com for any purpose other than to disseminate or receive original or appropriately licensed content and to access ErnestChan.com as such services are offered by Ernest Chan;
- delete the copyright or other proprietary rights markings on ErnestChan.com or other Users’ User Submissions;
- make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of ErnestChan.com. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
- use ErnestChan.com in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy or post, upload, or distribute any defamatory, libelous, or inaccurate User Submissions or other content;
- defame, harass, abuse, threaten or defraud Users of ErnestChan.com, or post, upload, or distribute any content that is unlawful or otherwise inappropriate, or collect, or attempt to collect, personal information about Users or third parties without their consent, or use the content on ErnestChan.com for any commercial use, it being understood that the content available on ErnestChan.com is for personal, non-commercial use only;
- rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted in these Terms or any Materials (as defined below);
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access ErnestChan.com accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via ErnestChan.com, or perform any other similar fraudulent activity;
- hack, remove, circumvent, disable, damage or otherwise interfere with security-related features of ErnestChan.com or User Submissions, features that prevent or restrict use or copying of any content accessible through ErnestChan.com, or features that enforce limitations on the use of ErnestChan.com or User Submissions, or intentionally interfere with or damage operation of ErnestChan.com or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of ErnestChan.com or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon ErnestChan.com or any part thereof, except and only to the extent that such activity is expressly permitted by these Terms or applicable law notwithstanding this limitation; or
- remove, obscure, block, hide or otherwise alter the display of any advertising (or any parts or aspects thereof), Ernest Chan brand elements, including logos, trademarks, service marks or other Materials displayed by Ernest Chan in connection with ErnestChan.com in any manner whatsoever, regardless of your use of the embedding functionality of ErnestChan.com to display authorized content on your or other third party sites.
Digital Millennium Copyright Act
It is Ernest Chan's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Ernest Chan's DMCA Guidelines. Ernest Chan may terminate without notice any User's access to ErnestChan.com if that User is determined by Ernest Chan to be a “repeat infringer.” A repeat infringer is a User who has been notified by Ernest Chan of infringing activity violations more than twice or who has had a User Submission or any other user-submitted content removed from ErnestChan.com more than twice.
- Ernest Chan may provide you the opportunity to promote your Published Content (“Promoted Documents”). A “Promotion” is Published Content consisting of information about a Promoted Document created in part by you and in part by automated means. Each Promotion consists of a title, body text, and a thumbnail. The thumbnail is automatically created from the Promoted Document. The title and body text is entered by you. Ernest Chan reserves the right to change how Promotions are created without notice.
- Your Promotion will automatically be placed based upon the targeting parameters and maximum auction bid price specified by you, but Ernest Chan does not make any representation, warranty, or other commitment of any kind regarding Promotions, including placement or bid price.
- In addition to the representations and warranties you make above with respect to your Promoted Documents as User Submissions, you also represent and warrant with respect to each of your Promotions that:
- your Promotions adhere to community standards of decency and good taste, and comply with the United States Federal Trade Commission’s “Guidelines Concerning the Use of Endorsements and Testimonials in Advertising,” 16 CFR Part 255 or equivalent legislation in effect;
- all statements contained in your Promotions are true, accurate and non-misleading;
- you will disclose clearly and conspicuously that you have been paid or provided benefits with your Promotions and Promoted Documents if that is the case;
- your Promotions and Promoted Documents do not include any personally identifiable information of third parties without such party’s permission;
- neither the title nor body text in any Promotion contain a URL;
- the title and body text in your Promotions accurately describe or indicate the content in the Promoted Document;
- your Promotions do not contain content that infringes upon the rights of any third party, including its copyrights, trademarks, privacy, or publicity rights;
- the title and body text in your Promotions do not reference Ernest Chan and do not utilize any logos or trademarks of Ernest Chan;
- the title and body text in your Promotions do not contain false, misleading, fraudulent, deceptive, inaccurate or unsubstantiated claims;
- your Promotions comply with any and all codes, laws, and regulations regarding advertising or promotion in your locality or otherwise applicable to your Promotions;
- your Promotions do not insult, threaten or harass any person; and
- your Promotions do not contain: (A) offensive, profane, obscene, vulgar or inappropriate language, including language describing in a negative way or attacking persons (either as a group or individually) on the basis of their race, nationality, religion, gender, or sexual orientation or any other hate speech or terroristic speech; (B) obscene, defamatory or libelous content; (C) unlawful content, including content that encourages unlawful activity; (D) sexually explicit or sexually suggestive content, including pornographic material, “adult friend finders” or dating sites with a sexual emphasis, “adult” toys or sexually explicit videos; or (E) advertisements for any of the following: alcoholic beverages, contests, raffles, or sweepstakes (please obtain written permission from Ernest Chan before promoting contents, raffles, or sweepstakes on Ernest Chan), firearms (including “bb” guns and paintball guns) or related products, including ammunition for such firearms, gambling websites, including online casinos and sports “books”, surveillance equipment, including “spy” cameras and “bugging” devices, tobacco products, or weapons of any kind.
- Ernest Chan may reject, refuse to publish, or remove from ErnestChan.com any Promotion or Promoted Document at any time for any reason, including failure to comply with these Terms or if, in Ernest Chan’s sole discretion, Ernest Chan determines that the business model, business practice, or service promoted by the Promotion or the Promoted Document is inappropriate or contrary to the letter or spirit of these Terms. Such prohibited business practices include chain letters, fraudulent or bad-faith “get-rich-quick” or “work from home” schemes, fraudulent or bad-faith web-based colleges or universities, fraudulent or misleading subscription services, pharmaceutical products, pyramid schemes, and sites that install malware, spyware or other software on users’ computers without their permission.
Third Party Software; Integrated Services and Linked Sites
- Third party software may be required to use some portions of the Service (e.g., Adobe Acrobat, Adobe InDesign). You are solely responsible for obtaining licenses to any third party software that may be required to use the Service, and your installation and use of any third party software is solely at your own risk. In addition, you are solely responsible for all fees charged by any third party in connection with your use of the Service (e.g., charges by mobile carriers).
- Ernest Chan may provide tools through ErnestChan.com that enable you to export information to Integrated Services, including through features that allow you to link your Ernest Chan account with an account on the Integrated Service, such as Facebook or Twitter, or through implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer that information to the applicable Integrated Service. In addition, ErnestChan.com may include links or references to other web sites or services solely as a convenience to Users (“Linked Sites”). Ernest Chan does not endorse any such Integrated Services or Linked Sites or the information, materials, products, or services contained on or accessible through any of them. Such third party sites and services are not under Ernest Chan’s control, and Ernest Chan is not responsible for their use of exported information. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through ErnestChan.com are also solely between you and such advertiser. Access and use of Integrated Services and Linked Sites, including the information, materials, products, and services on or available through them, is solely at your own risk.
Special Terms Regarding Apple
If you download Software from Apple, Inc.’s App Store, you acknowledge and agree that: (a) if any third party claims that your possession or use of the Software infringes a third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; (b) Apple has no responsibility for addressing any claims relating to the Software, including: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iv) any claim arising under consumer protection or similar legislation; and (c) Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you.
- Except as expressly provided otherwise in these Terms, you agree that Ernest Chan, in its sole discretion, and without penalty, may terminate or suspend any account hosted by, or your use of, ErnestChan.com and remove and discard all or any part of your account, User profile, and any User Submission, for any reason at any time. Ernest Chan may also in its sole discretion and at any time discontinue providing access to ErnestChan.com, or any part thereof, with or without notice. You agree that any termination of your access to ErnestChan.com or any account you may have or portion thereof may be effected without prior notice except as expressly provided otherwise in these Terms, and you agree that Ernest Chan will not be liable to you or any third party for any such termination, including any loss of your User Submissions. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Ernest Chan may have at law or in equity. Upon termination for any reason, you agree to immediately stop using ErnestChan.com, any accompanying documentation, and all other associated materials. Your only remedy with respect to any dissatisfaction with: (i) ErnestChan.com; (ii) any term of these Terms; (iii) any policy or practice of Ernest Chan in operating ErnestChan.com; or (iv) any content or information transmitted through ErnestChan.com, is to terminate these Terms and your account.
- You may cancel a Paid Service at any time by navigating to your account settings within ErnestChan.com and selecting the option to cancel that Paid Service. Unused fees are non-refundable and Ernest Chan reserves the right to charge you subscription fees through the end of the subscription term that you elected. If Ernest Chan charges you fees for the full subscription term, you will continue to have access to the cancelled Paid Service through the end of your subscription term, and these Terms will continue to apply to your use of that Paid Service.
- You may terminate your ErnestChan.com account and these Terms at any time by navigating to your account settings within ErnestChan.com and selecting the option to terminate your account. If Ernest Chan terminates your account for your breach of these Terms, Ernest Chan reserves the right to charge you fees through the end of your subscription term for any Paid Service you purchased prior to termination. If Ernest Chan terminates your use of any part or all of ErnestChan.com prior to the completion of your subscription period (except if such termination is a result of your breach of these Terms, in which case Ernest Chan may terminate without liability as described in the paragraph above), your sole remedy is a pro-rata refund of the purchase price paid for any terminated Paid Service.
Privacy; Consent to Electronic Communications
Ownership; Proprietary Rights
ErnestChan.com is owned and operated by Ernest Chan. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of ErnestChan.com provided by Ernest Chan (the “Materials”) are protected by Hong Kong copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Submissions that are provided and owned by Users, all Materials contained on ErnestChan.com are the property of Ernest Chan or its subsidiaries or affiliated companies or third-party licensors. All trademarks, service marks, and trade names are proprietary to Ernest Chan or its affiliates or third-party licensors. Except as expressly authorized by Ernest Chan, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Ernest Chan reserves all rights not expressly granted in these Terms.
You agree to indemnify Ernest Chan, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of ErnestChan.com, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you in these Terms. Ernest Chan reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Ernest Chan, and you agree to cooperate with Ernest Chan's defense of these claims. Upon notice of any impending claim, action or proceeding, Ernest Chan will use reasonable efforts to notify of any indemnification obligation.
Disclaimer of Warranties
ISSUU, AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ISSUU OR THROUGH THE ISSUU SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. YOU EXPRESSLY ACKNOWLEGE THAT THIS DISCLAIMER INCLUDES ISSUU's OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS. YOU EXPRESSLY AGREE THAT THE USE OF THE ISSUU SERVICE IS AT YOUR SOLE RISK. THE ISSUU SERVICE AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER SUBMISSIONS, LINKED SITES, PRODUCTS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE ISSUU SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. ISSUU, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE DATA, USER SUBMISSIONS, OR ANY OTHER PRODUCTS, SERVICES OR APPLICATIONS OFFERED ON OR THROUGH THE ISSUU SERVICE OR ANY LINKED SITES WILL BE SECURE, UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. ISSUU, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE ISSUU SERVICE OR ANY LINKED SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE ISSUU SERVICE OR ANY LINKED SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF YOU ARE A RESIDENT OF NEW JERSEY, SUCH LAWS MAY INCLUDE NEW JERSEY’S TRUTH AND CONSUMER CONTRACT WARRANTY AND NOTICE ACT.
Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL ISSUU OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE ISSUU SERVICE OR ANY LINKED SITES, OR ANY OTHER INTERACTIONS WITH ISSUU OR OTHER ISSUU SERVICE USERS, EVEN IF ISSUU OR AN ISSUU AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ISSUU's LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL ISSUU OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE ISSUU SERVICE OR YOUR INTERACTIONS WITH ISSUU OR OTHER ISSUU SERVICE USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE ISSUU SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN ISSUU AND RECEIVED THROUGH OR ADVERTISED ON THE ISSUU SERVICE OR RECEIVED THROUGH ANY LINKED SITES.
YOU ACKNOWLEDGE AND AGREE THAT ISSUU HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ISSUU, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ISSUU. ISSUU WOULD NOT BE ABLE TO PROVIDE THE ISSUU SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
Arbitration Agreement; Class Action Waiver; Governing Law
- Generally. In the interest of resolving disputes between you and Ernest Chan in the most expedient and cost effective manner, you and Ernest Chan agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms or the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Ernest Chan are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. You and Ernest Chan agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our rights to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitration. Any arbitration between you and Ernest Chan will be governed by Hong Kong Special Administrative Region of the People's Republic of China (HKSAR).
- Arbitration Notice; Process. If you elect to seek arbitration, you must first send to Ernest Chan, by certified mail or FedEx (signature required), a written notice of your claim addressed to: Legal Dept., Ernest Chan, 17A Wilson Road, Mount. Butler, Hong Kong. If Ernest Chan elects to seek arbitration, it will send a written notice to the email address you provided to Ernest Chan for your account. An arbitration notice, whether sent by you or by Ernest Chan, must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. You and Ernest Chan each agree to use good faith efforts to directly resolve any claim, but if we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or Ernest Chan may commence an arbitration proceeding or file a claim in small claims court. During any arbitration, the amount of any settlement offer made by Ernest Chan or you must not be disclosed to the arbitrator. You may download or copy a form notice and a form to initiate arbitration at www.adr.org. If our dispute is finally resolved through arbitration in your favor, Ernest Chan will pay you: (A) the amount awarded by the arbitrator, if any; (B) the last written settlement amount offered by Ernest Chan in settlement of the dispute prior to the arbitrator’s award; or (C) $1,000, whichever is highest.
- Fees. If you commence arbitration in accordance with these Terms, Ernest Chan will reimburse you for your payment of the filing fee unless your claim is for greater than $10,000, in which case the payment of any fees will be decided by the HKSAR Law. Any arbitration hearings will take place at a location to be agreed upon in the city of your billing address provided to Ernest Chan as part of your account registration, or, if no city was provided, in the HKSAR Law nearest to you, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the HKSAR Law. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the HKSAR Law. In such case, you agree to reimburse Ernest Chan for all monies previously disbursed by it that are otherwise your obligation to pay under the HKSAR Law. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- Modifications. If Ernest Chan makes any future change to this arbitration provision (other than a change to Ernest Chan's address for notice), you may reject the change by sending us written notice within 30 days of Ernest Chan’s notice to you of the change, in which case your account with Ernest Chan will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- No Class Actions. YOU AND ISSUU AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Ernest Chan agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. YOU MAY OPT-OUT OF THE CLASS ACTION WAIVER ABOVE WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt- Out Deadline”). You may opt out of the waiver by mailing written notification to Ernest Chan at the address stated at the end of these Terms. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not agree to the class action waiver. Your decision to opt-out will have no adverse effect on your relationship with Ernest Chan. Any opt-out request received after the Opt-Out Deadline will not be valid. Neither you, nor any other user of ErnestChan.com can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
- Enforceability. If any or all of this arbitration agreement provision is found to be unenforceable, then the entirety of this arbitration agreement provision will be void and, in that case, you and Ernest Chan both agree that the exclusive jurisdiction and venue described below will govern any action arising out of or related to these Terms.
- Governing Law; Venue. These Terms and any action arising out of these Terms or your use of the Service, whether interpreted in a court of law or in arbitration, will be governed by and construed in accordance with the laws of HKSAR, without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and Ernest Chan agree to the personal and exclusive jurisdiction in the courts in HKSAR.
If you use ErnestChan.com in an official capacity for a government or government agency in the Hong Kong, the following modifications of these Terms apply solely to that official use:
- Indemnification. The terms of Section 15 will apply to you only to the extent expressly permitted by your jurisdiction’s laws.
- Arbitration. The terms of Section 19(a) – (h) do not apply to your official use of the Service.
- Governing Law. The terms of Section 19(i) will apply only to the extent expressly permitted by your jurisdiction’s laws.
- YOU AND ISSUU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ISSUU SERVICE OR THESE TERMS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
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