FreshNotes. Intelligent & Powerful Widgets that Produce Results for Book & News Publishers

Terms of Service

Effective August 20, 2007

FreshNotes, operated by FreshNotes LLC ("FreshNotes") welcomes you. By using FreshNotes' Related Article Engine or other services, you agree to be bound by the following terms and conditions (the "Terms of Service").

0. Definitions

"End User" shall mean users of the site.

"Site" shall mean the Web site or sites on which you place the FreshNotes code, which renders the Recommendations Frame for receiving recommendations.

"Content" shall mean any editorial, text data, graphic, or media file that is linked to or referred to on a Site.

"FreshNotes code" shall mean HTML, JavaScript, or similar programming code which renders the Recommendations Frame.

"Recommendations Frame" shall mean any FreshNotes hosted or controlled web page frame that contains and displays recommendations or other FreshNotes-provided content to an End User.

1. Services

1.1 Description of Service. FreshNotes provides a Related Article Engine for online publishers to provide their readers with content related to what they are reading on the site. Placing FreshNotes code in your Site embeds Recommendations Frames within your Site.

1.2 Advertising. For non-Subscription plans, FreshNotes shall have the right to serve advertisements within any Recommendations Frame. FreshNotes shall have sole and complete control over the content of the Recommendations Frame.

1.3 Attribution. For non-Subscription plans, all Recommendations Frames shall conspicuously display text or a graphic that indicates that the service is provided by FreshNotes. The text or graphic shall link to the FreshNotes site located at http://www.freshnotes.com or such other address as FreshNotes may designate from time to time during the Term.

1.4 Modification of Services. Unless explicitly stated otherwise in a Service Contract, the Related Article Engine service may be modified or terminated at any time by FrehsNotes for any reason, and without notice, without liability to you, any End User, or any third party. Any new features that augment or enhance the current Related Article Engine shall be subject to the Terms of Service.

1.5 Modifications of Terms. FreshNotes may modify these Terms of Service at any time with or without notice, and you can review the most current version of the Terms of Service online at any time at http://www.freshnotes.com/termsofservice.html. If a modification is unacceptable to you, you may cancel the Related Article Engine on the Site and terminate the Terms of Service by removing the FreshNotes Code from the Site. If you continue to use the FreshNotes code on a Site, you will be deemed to have accepted the modifications.

1.6 Non-Exclusivity. You understand that FreshNotes will provide the Related Article Engine service on a nonexclusive basis, and that FreshNotes will continue to customize and provide its services to other parties for use in connection with a variety of applications.

1.7 Your Service Obligations. Your Site shall receive inputs from End Users, which are to be forwarded by the FreshNotes code to FreshNotes. You shall be responsible for providing all hardware and software and network connectivity required to perform your obligations under the Terms of Service, including but not limited to the following: (a) implementing and maintaining the Site, (b) implementing and maintaining the interface and connectivity between the Site and the Related Article Engine service, and (c) receiving inputs from an End User and transmitting the inputs to FreshNotes.

2. Conduct

You shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of your obligations under the Terms of Use. You shall not, and shall not allow any third party to: (a) edit, modify, truncate, filter or change the order of the information contained in or sent or received by any Recommendations Frame (either individually or collectively), including, without limitation, by way of commingling advertising or Recommendations with non-FreshNotes provided recommendation results or advertising; (b) obscure any portion of a Recommendations Frame; (c) display any Recommendations Frame in pop-up, pop-under, exit windows, expanding buttons, or animation; (d) display any Recommendations Frames to any third parties other than End Users; (e) minimize, remove or otherwise inhibit the full and complete display of any Recommendations Frame (including any advertisements or recommendations); (f) directly or indirectly access, launch and/or activate the Related Article Engine service through or from, or otherwise incorporate the Service in, any Client Application, Web site or other means other than the Site, and then only to the extent expressly permitted herein; (g) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any Related Article Engine service or access thereto (including, but not limited to recommendations, or any part, copy or derivative thereof); (h) except for arrangements or agreements with End Users for premium subscription services, Content or item purchases, or similar End User-related commercial transactions, enter into any arrangement or agreement under which any third party pays you fees, you pay any third party fees, or either shares in any revenue payments and/or royalties for any recommendations; (i) directly or indirectly generate queries, or impressions of or clicks on advertisements, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (j) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Related Article Engine service or any other FreshNotes technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (k) remove, deface, obscure, or alter FreshNotes' copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Recommendations Service or any other FreshNotes technology, software, materials and documentation; (l) crawl, spider, index or in any non-transitory manner store or cache information obtained from the Recommendations Service (including, but not limited to, recommendations, or any part, copy or derivative thereof); (m) attempt to hack into or access without authorization any non-Site related metrics from the Related Article Engine service platform; (n) create or attempt to create a substitute or similar service or product through use of or access to any of the Recommendations Service or proprietary information related thereto; and/or (o) engage in any action or practice that reflects poorly on FreshNotes or otherwise disparages or devalues FreshNotes' reputation or goodwill. Further, the Site shall not contain any explicit, hate-related, or violent content or contain any other material, products, or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights.

3. Proprietary Rights

3.1 FreshNotes Rights. You acknowledge that FreshNotes owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Related Article Engine service (including FreshNotes Code, and excluding items licensed by FreshNotes from third parties), and that you shall not acquire any right, title, or interest in or to the Related Article Engine service (including FreshNotes code), except as expressly set forth in the Terms of Service.

3.2 Brand Marks. You hereby grant to FreshNotes a nontransferable, nonexclusive license during the Term to use your Brand Marks to advertise that you are using the Related Article Engine service. FreshNotes hereby grants to you a nontransferable, nonsublicenseable, nonexclusive license during the Term to display FreshNotes' Brand Marks, without modification or distortion and in keeping with the use of the Brand Marks on the FreshNotes site and within the Related Article Engine service, for the purpose of promoting or advertising that you use the Related Article Engine service. Except as set forth in this Section 3.2, nothing in the Terms of Service shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party's Marks. All use by you of FreshNotes' Brand Marks (including any goodwill associated therewith) shall inure to the benefit of FreshNotes. FreshNotes, the FreshNotes logo, and other marks that incorporate the word FreshNotes are trademarks of FreshNotes.

3.3 Copyright Infringement. It is FreshNotes' policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. For directions and more information, please see http://www.copyright.gov/legislation/dmca.pdf. Use of the Related Article Engine service for copyright infringement is strictly prohibited.

4. Privacy Policy

Please review our Privacy Policy to review how we handle personally identifiable information about users.

5. Disclaimer of Warranties and Limitation of Liability

THIS SITE AND THE FRESHNOTES RELATED ARTICLE ENGINE SERVICE IS PROVIDED BY FRESHNOTES ON AN "AS IS" AND "AS AVAILABLE" BASIS. FRESHNOTES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, OR MATERIALS INCLUDED ON THIS SITE OR RECOMMENDED THROUGH THE RELATED ARTICLE ENGINE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE AND RELATED ARTICLE ENGINE SERVICE IS AT YOUR SOLE RISK. FRESHNOTES RESERVES THE RIGHT TO WITHDRAW OR DELETE ANY INFORMATION FROM THIS SITE AT ANY TIME IN ITS DISCRETION.

TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, FRESHNOTES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. FRESHNOTES DOES NOT WARRANT THAT THIS SITE, ITS SERVERS, RELATED ARTICLE ENGINE SERVICES, SOFTWARE DOWNLOADED FROM FRESHNOTES.COM, OR E-MAIL SENT FROM FRESHNOTES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UNDER NO CIRCUMSTANCES SHALL FRESHNOTES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.

YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE FRESHNOTES SITE OR RELATED ARTICLE ENGINE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

6. Indemnification

You will indemnify, defend, and hold FreshNotes harmless from any third party lawsuit or proceeding brought against FreshNotes based upon a claim that would constitute a breach of any warranty, representation, or covenant made by you under the Terms of Service, including but not limited to any third party lawsuit or proceeding brought against FreshNotes based upon a claim that your Content, Site, or Brand Marks infringe any copyright, trade secret, or trademark of the third party or slanders or libels any person, firm, corporation, or association. Your indemnification will include (1) all attorneys' fees and costs associated with the defense of such a claim, (2) all damages and costs finally awarded, and (3) the full cost of any settlement entered into by you. Freshnotes shall (1) notify you of any such claim, (2) provide you with reasonable information, assistance, and cooperation in defending the lawsuit or proceeding (to the extent requested by you), and (3) give you full control and sole authority over the defense and settlement of such claim. You will not enter into any settlement or compromise of any such claim without FreshNotes' prior consent, which shall not be unreasonably withheld.

7. Term and Termination

7.1 Term. The term of the Terms of Service (the "Term") shall commence on the date upon which you add FreshNotes code to Your Site and shall continue in force thereafter, unless terminated as provided herein.

7.2 Termination. FreshNotes may change, suspend or discontinue all or any aspect of the Related Article Engine service, including their availability, at any time, and may terminate your use of the Recommendations Service at any time. In addition, either party may terminate the Terms of Service at any time, for any reason, or for no reason including, but not limited to, if you engage in any action that reflects poorly on FreshNotes or otherwise disparages or devalues the FreshNotes' Brand Marks or FreshNotes' reputation or goodwill. If you desire to terminate the Terms of Service, you must remove the FreshNotes code and Recommendations Frames from your Site.

7.3 Rejection of Application. FreshNotes shall have the right, in its sole discretion, to reject any request to use the Related Article Engine service at any time and for any reason, and such rejection shall render null and void the Terms of Service between you and FreshNotes. FreshNotes shall not be liable to you for damages of any sort resulting from its decision to reject such a request.

7.4 Effect of Termination. Upon the termination of the Terms of Service for any reason (i) all license rights granted herein shall terminate and (ii) You shall immediately delete any and all FreshNotes' Marks, FreshNotes code, and Recommendations Frames from the Site.

7.5 Remedies. You acknowledge that your breach of service/license restrictions contained herein may cause irreparable harm to FreshNotes, the extent of which would be difficult to ascertain. Accordingly, You agree that, in addition to any other remedies to which FreshNotes may be legally entitled, FreshNotes shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants or other agents.

8. Miscellaneous

8.1 Non-Assignment. You may not assign your rights or delegate your obligations under the Terms of Service without FreshNotes' prior written consent. Nothing in the Terms of Service should be construed to confer any rights to third party beneficiaries.

8.2 Notices. Any notice to FreshNotes required for or permitted by the Terms of Service shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by overnight courier upon written verification of receipt, or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. All notices to FreshNotes must be sent to the attention of the FreshNotes Legal Department at the address as provided below:

FreshNotes LLC
P.O. Box 2072
New York, NY 10025
http://www.freshnotes.com

8.3 Governing Law and Venue. The Terms of Service will be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles.

8.4 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

8.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause, which is beyond the reasonable control of such party.

8.6 Waiver. The failure of FreshNotes to require performance by you of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by FreshNotes of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

8.7 Severability. If any provision of the Terms of Service is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Terms of Service shall remain in full force and effect.

8.8 Entire Agreement. These Terms of Service constitute the entire agreement between the parties with respect to the subject matter hereof. The Terms of Service supersede, and the terms of the Terms of Service govern, any other prior or collateral agreements with respect to the subject matter hereof.