TERMS OF SERVICE AGREEMENT
IMPORTANT - READ CAREFULLY: YOU MUST READ THE TERMS
AND CONDITIONS BELOW ("AGREEMENT") BEFORE STARTING YOUR
RELATIONSHIP WITH CYLOPSMEDIA.COM, A CALIFORNIA
CORPORATION. THIS IS A LEGAL AGREEMENT BETWEEN YOUR
LITERARY AGENCY AND CYCLOPSMEDIA.COM. THESE TERMS AND
CONDITIONS GOVERN YOUR USE OF THE SERVICE. BY CLICKING
ON THE "ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THESE
TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO BE BOUND
BY ALL THE TERMS AND CONDITIONS, YOU SHOULD CLICK ON
THE "I DO NOT AGREE" BUTTON AND YOUR ACCOUNT WILL NOT
BE ACTIVATED.
1.0 - GENERAL TERMS AND SERVICE
The author claims that the author holds the copyright
for work provided to CyclopsMedia.com, and the author
acknowledges that the author retains responsibility for
defending its copyright. The author grants permission
to CyclopsMedia.com to sell manuscript titles on behalf
of the author. This service is provided by
CyclopsMedia.com for a commission of 50% of the total
sales price paid by the retail purchaser. The balance
of the purchase price is remitted directly to the
Literary Agency and is subject to the contract in place
between author and the Literary Agency. All fees and
costs of operating CyclopsMedia.com are paid by
CyclopsMedia.com from the proceeds of its sales
commission. The revenue remitted to the Literary Agency
is paid once every month within three weeks of the end
of the month. In order for CyclopsMedia.com to provide
service and make payments to the Literary Agency,
CyclopsMedia.com collects and maintains information
about the Literary Agent and author, including, but not
limited to, your legal/user name, full address,
telephone numbers with the area code, email address and
either Social Security Number or Corporate Tax
Identification Number.
2.0 - PERMISSION
CyclopsMedia.com will own no legal rights or claims
upon the author's works in any way. CyclopsMedia.com
has, through the execution of this agreement, the
permission to sell the authors works. This permission
is granted by the Literary Agency and may be revoked at
any time by either party for any reason. When revoked,
CyclopsMedia.com will terminate all sales of the
particular work within 48 hours. Should the Literary
Agency terminate all its business activities,
CyclopsMedia.com will continue sales until notified by
the author or the successor party to the Literary
Agency, and follow the instructions given it regarding
continuation of sales.
3.0 - INFORMATION AND PRIVACY POLICY FOR AUTHORS
AND LITERARY AGENCIES
CyclopsMedia.com will maintain information about each
author and Literary Agency for the purpose of promoting
its website. This information includes a brief author's
biography. This information will be made available to
CyclopsMedia.com members and visitors to the website.
Authors will be able to advertise their manuscripts
using banner advertisements for a fee. Manuscripts will
be made available for free for review by book
reviewers, and may also be reviewed by members and
other manuscript purchasers. Such reviews will be
posted on the website to guide potential purchasers and
also to encourage revision of manuscripts by authors.
4.0 - PRODUCT PRICE
CyclopsMedia.com makes available the first chapter of
any work for free to potential purchasers. Subsequent
chapters may be made available for $0.50 each, up to a
maximum price of $5.95. In addition, CyclopsMedia.com
will let members and site visitors create custom built
free eAnthologies that can contain up to one additional
chapter of an author's work. Should the Literary Agency
wish, it can pay to have the records of
CyclopsMedia.com audited regarding sales of a specific
author.
5.0 - THIRD PARTY FEES AND CHARGES
CyclopsMedia.com accepts responsibility for any third
party fees and charges associated with offering of an
authors works from its website, providing that the fees
and charges were agreed to in advance in writing by
CyclopsMedia.com in advance. The author and their
Literary Agency are responsible for promotion of the
author's works, including any fees and charges incurred
for such activities.
6.0 - ACCEPTABLE USE POLICY
By accepting this Agreement, You also agree to the
Acceptable Use Policy ("Acceptable Use Policy" or
"AUP") governing use of the Service as posted and
changed from time to time. The AUP can be viewed at
www.CyclopsMedia.com. CyclopsMedia.com may
terminate this Agreement and your ability to use the
Service if it has reason to believe in its sole
discretion that either the Literary Agency or author
have not abided in all respects by the AUP.
7.0 - TRANSMISSION AND RECEIPT OF CONTENT
CyclopsMedia.com is not obligated to control the
content of information passing through its website.
However, CyclopsMedia.com reserves the right to block
access to or remove any materials accessible through or
transmitted through the service that CyclopsMedia.com
believes in its sole discretion to be inappropriate,
illegal or potentially harmful to others or that may
expose CyclopsMedia.com to any liability.
CyclopsMedia.com, at its sole discretion, may control
the content that members and visitors to its website
may view, based on its business relationships with
various content providers and other partnership
agreements. You also agree that you will not challenge
CyclopsMedia.com's decisions. You further agree that
your sole remedy, under such circumstances, will be to
exercise your rights to terminate your relationship
with CyclopsMedia.com as expressly provided in Section
13.0 of this Agreement.
8.0 - COMMENCEMENT OF SERVICE
CyclopsMedia.com will use reasonable efforts under the
circumstances to provide the Service to you starting
November 1, 2000 AND initiate the Service starting
November 15, 2000.
9. 0 - TERMINATION OF AGREEMENT FOR COPYRIGHT
VIOLATION
CyclopsMedia.com will terminate the Literary Agency's
account if CyclopsMedia.com discovers that the Literary
Agency has unlawfully transmitted copyrighted material
without a license. After proper notification by the
copyright holder or its agent to CyclopsMedia.com and
later confirmation through court order or the Literary
Agent's or author's admission that an account has been
used in an unlawful infringement, CyclopsMedia.com will
terminate the Literary Agency's account.
CyclopsMedia.com may also, in its sole discretion,
decide to terminate your account privileges prior to
that time if it has good faith belief that infringement
has in fact occurred.
10.0 - INDEMNITY
Upon request of CyclopsMedia.com, the Literary Agency
and author shall defend, indemnify and hold harmless
CyclopsMedia.com, its officers, directors, employees,
agents and licensees, from any claims, losses, damages,
expenses, and fees including without limitation
reasonable attorneys fees, arising out of or relating
to the Literary Agency's use of the Service, including,
without limitation, any violation by the Literary
Agency's of any of CyclopsMedia.com policies.
11.0 - DISCLAIMER OF WARRANTIES
THE SERVICE ARE PROVIDED "AS IS," WITHOUT WARRANTIES OF
ANY KIND. YOU ACKNOWLEDGE THAT USE OF THE SERVICE IS AT
YOUR SOLE RISK AND YOU AGREE THAT ANY INFORMATION,
SERVICE OR PRODUCT ACCESSIBLE THROUGH THE SERVICE IS
WITHOUT WARRANTIES OF ANY KIND BY CYCLOPSMEDIA.COM,
EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME STATES DO
NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IN THOSE
STATES, CYCLOPSMEDIA.COM'S LIABILITY IS LIMITED TO THE
FULLEST EXTENT ALLOWED BY LAW.
12.0 - LIMITATION OF CYCLOPSMEDIA.COM 'S
LIABILITY
IN NO EVENT SHALL CYCLOPSMEDIA.COM BE LIABLE UNDER ANY
SECTION OF THESE TERMS AND CONDITIONS OR UNDER
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER
LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOSS OF USE, LOSS PROFITS, LOSS OF DATA, OR
INFORMATION OF ANY KIND OR LOSS OF BUSINESS, GOODWILL,
OR OPPORTUNITY) WHETHER OR NOT CYCLOPSMEDIA.COM HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES. CYCLOPSMEDIA.COM SHALL NOT BE LIABLE FOR THE
COST OF PROCUREMENT OF SUBSTITUTE SERVICES, GOODS OR
TECHNOLOGY AND IN NO EVENT SHALL CYCLOPSMEDIA.COM
LIABILITY TO YOU EXCEED ONE HUNDRED DOLLARS ($100.00).
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE
TERMS AND CONDITIONS, MAY BE BROUGHT BY THE AUTHOR OR
LITERARY AGENT OR CYCLOPSMEDIA.COM MORE THAN ONE (1)
YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.
SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON
LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL
INJURY, AND, IN SUCH JURISDICTIONS, CYCLOPSMEDIA.COM 'S
LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT
LIMITED BY LAW. THIS LIMITATION WILL APPLY REGARDLESS
OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
13.0 - TERMINATION
You may terminate this Agreement at any time by
notifying CyclopsMedia.com and requesting that we close
your account. CyclopsMedia.com may similarly suspend or
terminate your account for the Service at any time for
any reason, including but not limited to failure to
comply with the terms of this Agreement and any of
CyclopsMedia.com 's policies. Upon termination of this
Agreement, the provisions of Paragraphs 10.0, 11.0 12.0
and 15.0 shall survive.
14.0 - MODIFICATION
CyclopsMedia.com may modify this agreement, the AUP, or
any policy governing use by the Literary Agency at any
time in its sole discretion. Any modification by
CyclopsMedia.com is effective immediately when posted
either on the CyclopsMedia.com web page, currently
located at www.CyclopsMedia.com or by a message sent to
the Literary Agency by CyclopsMedia.com through an
electronic mail. If any modification to this agreement
is unacceptable to the Literary Agency, the Literary
Agency may immediately terminate your account as
provided in Paragraph 21.0. However, if the Literary
Agency does not terminate its account, or continues to
use the Service following the posting or email notice
of any modification to this Agreement, continued use
will be deemed an acceptance of that modification.
15.0 - FORCE MAJEURE
CyclopsMedia.com will not be liable in any amount for
failure to perform any obligation under this Agreement
if such failure is caused by the occurrence of any
unforeseen contingency beyond the reasonable control of
such party including without limitation Internet
outages, communications outages, fire, flood, war or
act of God.
16.0 - ENTIRE AGREEMENT
This Agreement constitutes the sole agreement between
CyclopsMedia.com and the Literary Agent and its authors
respecting the subject matter hereof and will fully
supersede any and all other agreements, either oral or
in writing.
17.0 - GOVERNING LAW
Interpretation and enforcement of this Agreement will
be governed by the laws of the state of California
(excluding its choice of law rules). You hereby consent
to personal jurisdiction in the federal and state
courts of San Mateo County, California for any action
arising out of or relating to your use of the Software
or the Service. The federal and state courts of San
Mateo, California will have exclusive jurisdiction over
all such actions. In any such action, the prevailing
party will be entitled to recover all legal expenses
incurred in connection with the action, including but
not limited to costs and attorney's fees.
18.0 - MISCELLANEOUS PROVISIONS
In the event that any provision or provisions of this
Agreement are held to be unenforceable, this Agreement
will continue in full force and effect without said
provision and will be interpreted to reflect the
original intent of the parties. Waiver by either party
of a breach of any provision of this Agreement or the
failure by either party to exercise any right hereunder
will not operate or be construed as a waiver of any
subsequent breach of that right or as a waiver of any
other right.
CyclopsMedia.com uses services of various vendors to
support its business. In addition, CyclopsMedia.com has
licensed certain software products for development and
maintenance of its business. The use of such services
and software vendor products is at the sole discretion
of CyclopsMedia.com.
Should the Literary Agency have any questions
concerning this Agreement, or desire to contact
CyclopsMedia.com for any reason, please contact:
CyclopsMedia.com
Literary Agents Department
408 Farallone Avenue
Montara, CA 94037-1137
Or send e-mail to:
litagents@CyclopsMedia.com.
19.0 - CANCELLATION
If you would like to cancel CyclopsMedia.com(tm)
service you must send an email to
litagents@cyclopsmedia.com with CANCEL in the
subject line. You can also send a certified letter
addressed to:
CyclopsMedia.com
Literary Agents Department
408 Farallone Avenue
Montara, CA 94037-1137
Please allow two business days for the cancellation to
take effect if sending an email.
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