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TERMS & CONDITIONS

 

ACCEPTANCE OF THE TERMS & CONDITIONS

THE FOLLOWING TERMS & CONDITIONS (“TERMS & CONDITIONS”) ARE APPLICABLE TO THE USE OF THE WWW.BOOKSIO.COM WEBSITE AND OTHER AFFILIATED WEBSITES (THE “SITES”) WHICH IS(ARE) OPERATED BY HUMMINGBIRD DIGITAL MEDIA, INC. (“WE,” “US,” OR “OUR”).  PLEASE READ THESE TERMS CAREFULLY BEFORE YOU START TO USE ANY OF THE SITES.  YOUR USE OF A SITE CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS & CONDITIONS AND CREATES A BINDING CONTRACT BETWEEN YOU AND US.  IF YOU FIND THE TERMS & CONDITIONS TO BE UNACCEPTABLE, THEN YOU ARE NOT AUTHORIZED TO USE THE SITES, AND YOU MUST IMMEDIATELY TERMINATE YOUR USE OF THE SITES. 

WE WANT TO HIGHLIGHT SOME IMPORTANT TERMS, POLICIES, AND PROCEDURES IN THESE TERMS & CONDITIONS: 

Privacy Policy.  You are also agreeing to our Privacy Policy which is expressly incorporated into these Terms and Conditions, and may be accessed at www.booksio.com/privacy or by clicking here.

Mandatory Arbitration. Section 19 of these Terms & Conditions contains a mandatory arbitration provision that requires you to individually arbitrate (not in court) any disputes or claims you may have with us.  The mandatory arbitration provision also waives your right to participate in a class action or multi-party arbitration. You may opt-out of the mandatory arbitration provision by providing written notice of your decision within thirty (30) days of the date that you first register on the Sites.  We believe the alternative dispute-resolution process of arbitration will resolve any dispute fairly and more quickly and efficiently than formal court litigation.  This is explained in more detail in Section 19 below, but we put this up front (and in caps) because it’s important:

THESE TERMS & CONDITIONS CONTAIN A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION. IF YOU ACCEPT THESE TERMS & CONDITIONS, YOU AND WE AGREE TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT INDIVIDUALLY OR AS PART OF A CLASS ACTION.

TO ENTER INTO THE CONTRACT CREATED BY THESE TERMS & CONDITIONS, YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OF AGE. YOU ARE LEGALLY AND FINANCIALLY RESPONSIBLE FOR ALL ACTIONS USING OR ACCESSING OUR SITES, INCLUDING THE ACTIONS OF ANYONE YOU ALLOW TO ACCESS TO YOUR ACCOUNT. YOU AFFIRM THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE, AND THAT YOU UNDERSTAND AND ACCEPT THESE TERMS & CONDITIONS (INCLUDING ITS DISPUTE RESOLUTION TERMS).  IF YOU ARE IF YOU ARE BETWEEN THE AGES OF THIRTEEN (13) AND EIGHTEEN (18), YOUR PARENT OR LEGAL GUARDIAN MUST CONSENT TO THESE TERMS & CONDITIONS BEFORE YOU MAY USE A SITE.

 

1:  Account Registration

Booksio.com and affiliated or commonly-controlled websites, including all of those Sites’ content and features, are services made available by Hummingbird Digital Media, Inc., a California corporation that sells hardcopy and digital books, magazines, newspapers, audiobooks, and related content, and then donates 10% of every purchase to a charitable organization (hereinafter “Services”).  To use the Services, you will be asked to provide personally identifiable information such as your name, address, phone number, shipping address, email address, date of birth, and payment information (collectively, “PII”) as well as a password in order to make a purchase and create a personal account with us (“Account”).  Please be sure to protect the confidentiality of the password you create for your Account.  Please review our Privacy Policy regarding the PII we collect, use and share, and the terms of such collection, use and sharing.  You are responsible for, and agree to pay promptly, all charges to your Account including applicable taxes and purchases by you or anyone you allow to use your Account.  You represent and warrant that all PII you provide in connection with registering your Account is complete, accurate, and non-fraudulent, and that you are authorized to use the method of payment you provide in connection with your use of the Services.  We reserve the right to contact the service provider of your method of payment to conduct fraud or security checks.  You acknowledge and agree that you may never use another customer’s Account without their prior approval.  You also agree to review and update your Account as and when necessary to maintain the most current PII.

2:  Eligibility

The Sites are intended for use by United States residents who are at least 18 years of age or United States residents who are between the ages of thirteen (13) and eighteen years (18) years of age who have a parent’s or guardian’s consent to use the Sites.  We do not represent that all content, materials, and Services on our Sites are appropriate or available for use in geographic locations outside the United States, and accessing the Sites from certain locations may be illegal and prohibited.  You agree not to access the Sites or any content, materials, or Services on the Sites where prohibited by law.  We are not responsible for your compliance with local laws or other applicable laws.

 

3:  Acceptable Use

You hereby agree that you are solely responsible for your conduct in connection with your use of the Sites and for any and all acts and omissions that occur under your Account or password.  In connection with your use of the Sites, you further agree not to engage in any of the following prohibited activities: (a) create an Account or make any purchase if you are under eighteen (18) years of age, or between the ages of thirteen (13) and eighteen years (18) without parental or guardian consent; (b) interfere with or inhibit the use of the Sites by other users; (c) use the Sites for commercial purposes for yourself and/or third parties (for example, by selling, or attempting to sell, your purchases to others, etc.); (d) create an Account using a false identity, alter-ego, by impersonating a third party, or creating any other false account; (e) interfere with, disrupt or attempt to gain unauthorized access to other Accounts on the Sites or any other computer network; (f) copy, reverse engineer, or attempt to derive the source code of any part of the Sites; (g) post any comment or product review on the Sites or Social Media Pages that is private, libelous, harassing, abusive, obscene, vulgar, sexually explicit, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or is unrelated to our products or services or is clearly false or misleading; (h) disseminate or transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property of any person; (i) disseminate or transmit viruses, Trojan Horses, or any other malicious code or program; or (j) use the Sites in a manner or engage in any other activity that would violate any of the terms and conditions contained in these Terms and Conditions or any applicable laws.  Violation of the foregoing restrictions will result in immediate termination of your Account, and may potentially subject you to further liability.  We may investigate any reported violation of these Terms and Conditions and take any action that we deem appropriate. Such action may include, but is not limited to, issuing warnings, closing your Account, suspending future shipments to you, unilaterally removing posted content, and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties.

 

4:  Limited License

We grant you the limited right to access and make use of the Sites as a user.  The Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Sites (“Content”) are owned by or licensed to us, or fairly used pursuant to applicable law.  Unless authorized in writing and in advance by us or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose.  No provisions of these Terms and Conditions shall be construed to convey any property right in or license to the Content unless expressly provided to the contrary.

 

5:  Proprietary Rights

The Sites are made available for your personal, non-commercial use only and you agree not to copy, duplicate, display, publicly perform, republish, transmit, distribute, modify, reverse engineer or prepare derivative works of all or any portion of the Sites for any purpose, nor delete, or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Sites.  Portions of the Sites are proprietary to us and are protected by United States and international intellectual property laws and treaties, including copyright, trademark, service mark, trade secret and/or patent laws.  We reserve all of our rights with respect to those laws.  Such protected Site Content includes BOOKSIOTM and related stylized “Booksio” designs, which are common law trademarks of Hummingbird Digital Media, Inc.

Some of the content and services on the Sites are provided by third parties and is proprietary to these third parties.  This means that the names of companies and products that we do not own and that are mentioned on the Sites may be the trademarks of their respective owners, including the trademark NY TIMES BESTSELLERS® and related marks that are registered trademarks of The New York Company.  Any use of the protected Services and/or Content belonging to us or third parties without the express written permission of the owner thereof is strictly prohibited.

You may not use the Sites to sell a product or service, or to increase traffic to your website for commercial reasons, such as advertising sales. You may not take search results from a Site and reformat and display them, or mirror the Sites’ home page or search results pages on your website.

For clarity, the foregoing permissions are limited to the Sites, and no rights are granted with respect to any servers, computers, or databases associated with the Sites.

 

6:  Copyright Policy

Hummingbird Digital Media, Inc. respects the intellectual property rights of others.  It is our policy to expeditiously respond to claims of infringement. We will promptly process and investigate notices of alleged copyright and/or trademark infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable laws.  Hummingbird Digital Media, Inc. will terminate, in appropriate circumstances, users who are repeat infringers of another party’s copyright.

If you believe that any Site Content infringes upon your copyright, please notify us at copyright@booksio.com.  Your notice should include: (a) a description of the copyrighted work that you claim has been infringed; (b) the URL where the allegedly infringing Site Content is located; (c) your full name, postal address, telephone number, and email address; (d) a statement that you have a good faith belief that the use of the allegedly infringing material on the Site is not authorized; (e) your physical or electronic signature; and (f) a statement that you are the copyright owner or an authorized agent of the copyright owner, including any applicable United States copyright registration number(s).  Claims of copyright infringement take time to review, but we will endeavor to respond to a complete and accurate takedown notice within ten (10) business days of receipt.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly and materially misrepresents that material or activity is infringing may be subject to liability.  You may wish to contact an attorney for legal assistance on this matter prior to submitting a notification.

If your Site Content was removed from any Site in response to a take down notice, and you believe that Site Content was removed by mistake or misidentification, you or your agent may provide Hummingbird Digital Media, Inc. with a written counter-notification containing the following information: (a) your name, address, telephone number, and email address; (b) a description of the material that was removed from the Site(s); (c) a description of where on the Site(s) the Site Content that was removed previously appeared (e.g., URL); (d) a statement that you have a good faith believe that the Site Content was removed or disabled as a result of a mistake or misidentification; (e) a statement by you under penalty of perjury under applicable law that the information in your counter-notice is accurate; (f) a statement that you consent to the jurisdiction of the U.S. District Court for the judicial district in which your address is located, or if your address is outside of the United States, then the United States District Court for Eastern District of California, Fresno Division, and that you will accept service of process from the copyright claimant that filed the original DMCA notice or an agent of that copyright claimant; and (g) your electronic or physical signature.

 

7: Orders, Shipping, and Delivery

Products purchased from the Sites will be shipped to you via a third party carrier.  Whenever purchased items are shipped to you, title and risk of loss or damage for such products will pass to you upon our delivery to the third party carrier.  Unless otherwise indicated at the time of your purchase, shipping and handling fees are NOT included with your order.  Such fees will be added to the price of your purchased products. Shipping dates and/or arrival times given are only estimates.  Refunds are at the sole discretion of Hummingbird Digital Media, Inc.

 

8:  Return Policy

If you are not satisfied with your purchase from Booksio.com or a Site, please follow our item return instructions available here:  https://booksio.zendesk.com/hc/en-us/articles/6654583002516-I-ve-decided-I-don-t-want-what-I-ordered.  All merchandise must be returned in its original condition; shrink-wrapped merchandise must be unopened.  When your order is received, we’ll initiate a refund for the purchase price of the products returned.  Refunds will be issued to the original payment method within 5-10 days.  To help cover your return shipping costs, we’ll also refund the initial shipping charge.

 

9:  Payment

Your credit or debit card will be charged immediately upon checkout.  We will not process orders that attempt to use an incorrect, expired, or over-the-limit credit card.  However, in the event such an order is processed, we reserve the right to collect funds for any uncollected transactions owed to us.  If you fail to pay any fees or charges when due or if a redelivery fee or restocking fee is imposed, we may charge such amount directly to the credit card identified in your Account and may suspend or terminate your access to the Services, including your subscription.  You shall be responsible and liable for any fees, including attorneys’ fees and collection costs, that we may incur in our efforts to collect any unpaid balances from you.  Your right to use the Services is subject to limits established by us and/or by your credit card issuer.

We use a third party payment service in lieu of directly processing your credit card information.  By submitting your credit card information, you grant Hummingbird Digital Media, Inc. the right to store and process your information with the third party payment service, which it may change from time to time; you agree that Hummingbird Digital Media, Inc. will not be responsible for any failures of the third party payment service to adequately protect such information.  All financial matters regarding your information are subject to the conditions of the third party payment service provider’s terms of service.  You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.

 

10:  Promotional Emails

When you first make a purchase through the Sites, you agree to receive transactional and promotional emails from us.  These emails may include, but are not limited to, suggestions for future purchases, promotional offers, subscription information, or other offers.  We may rent, sell, or share your email address to the extent set forth in our Privacy Policy or otherwise in these Terms & Conditions.

 

11: Equipment

You are solely responsible for providing and maintaining all hardware, software, electrical, and other physical requirements for your use of the Sites, including telecommunications and Internet access connections and links, web browsers or other equipment, compatibility, and all other programs or services required to access and use the Sites (“Equipment”). We will not be responsible for any interruption of service or access resulting from any failure of any of such Equipment. 

You may not use the Sites in any manner that could damage, disable, overburden, or impair any of the Sites or servers, or the network(s) connected to any of the Sites or servers, or interfere with any other party’s use and enjoyment of any of the Sites or servers.  You may not attempt to gain unauthorized access to any part of the Sites, other accounts, computer systems, or networks connected to any of the Sites or servers through hacking, password mining, or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Sites. 

12:  Disclaimer and Limits on Liability

THE SITES AND THE CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY LAW.  YOUR USE OF THE SITES AND THE CONTENT IS SOLELY AT YOUR OWN RISK.  IN NO EVENT SHALL HUMMINGBIRD DIGITAL MEDIA, INC. OR ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS RELATING TO THE PURCHASE, SALE, DELIVERY, AND/OR USE OF THE PRODUCTS AND SERVICES SOLD THROUGH THE SITES OR ANY CONSEQUENCES WHICH MAY RESULT THEREOF.

THE PRODUCTS AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESS DISCLAIMED TO THE EXTENT PERMITTED BY LAW.

TO THE EXTENT PERMITTED BY LAW, HUMMINGBIRD DIGITAL MEDIA, INC. SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITES, YOUR PLACEMENT OR DELIVERY OF ORDERS THROUGH THE SITES, OR YOUR USE OF THE PRODUCTS OR SERVICES OFFERED THROUGH THE SITES EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

13.  Errors, Omissions, and Inaccuracies; Inaccessibility or Inoperability

We strive to provide complete, accurate, and up-to-date information on our Sites.  Unfortunately, despite those efforts, human or technological errors may occur.  For example, our Sites may contain typographical errors, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current.  We reserve the right to correct any errors, inaccuracies, or omissions, including after an order has been submitted, and to change or update information at any time without prior notice.  In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of products offered on the Sites.

You also understand and agree that the Sites may, at times, be inaccessible or inoperable for any reason, including: (a) equipment or communications malfunctions; (b) periodic maintenance, repairs or administrative reviews which we may undertake from time-to-time; or (c) causes beyond our control or which are not foreseeable by us.  We will not be responsible or liable in any way to you or anyone else due to or as a result of any such inaccessibility or inoperability.  We make no commitment to update or correct any errors on the Sites.

 

14: Indemnification

This section only applies to the extent permitted by applicable law.  If you are prohibited by law from entering into the indemnification obligation below, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation below.

You agree to indemnify, defend, and hold Hummingbird Digital Media, Inc. and its employees, officers, members, directors, agents, representatives, affiliates, service partners, licensors, successors, and assigns harmless from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys’ fees and costs) resulting from any claim, suit, or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from, or in any way attributable to: (a) your use of the Sites; (b) anything you post to the Sites; (c) your violation of these Terms and Conditions; (d) your violation of the rights of any third parties; and/or (e) use of the Sites or your Account by any other person accessing the Sites using your computer or Internet access account.

 

15: Privacy Policy; Confidentiality

Our Privacy Policy contains terms and conditions that govern our collection and use of the information you provide us or that we obtain through your use of our Sites and our respective rights relative to that information.  In general, we share information you provide us with our marketing partners.  Please review our Privacy Policy before you use our Sites. Your use of the Sites indicates your agreement to our Privacy Policy.

As noted above, we cannot guarantee the confidentiality of information provided over the Internet such as, for example, when using the Sites, or sending or receiving e-mail messages.  We will not be responsible for any harm that you or any person may suffer as a result of a breach of confidentiality from your use of the Sites.

 

16:  Fraudulent Activity Policy

We strictly prohibit user fraud and abuse relating to access to and use of the Sites.  In accessing the Sites, or any other activities, products or services offered by or through the Sites, you represent and warrant that: (a) all information you supply is complete and accurate, (b) you are not acting in violation of any applicable laws, rule, regulations, or of these Terms & Conditions, and (c) you will not circumvent or attempt to circumvent any provision these Terms & Conditions or any security feature on the Sites or engage in any activity that interrupts or attempts to interrupt the Site’s operation. You may use the Sites only for lawful purposes and in accordance with these Terms & Conditions. You agree not to access or use the Sites for any purpose that is illegal or beyond the scope of the intended use (in our sole judgment).We may take action, including disabling your Account, if we deem that you exhibit unusual patterns of behavior and/or random and/or excessive clicking on a link or links after performing a search.

 

17:  Export Controls and Designated Persons

The Sites are operated from the United States and it is possible, however unlikely, that software available at or through the Sites may be subject to United States export controls administered by the United States Commerce Department or sanctions programs administered by the United States Treasury Department.  No software available at or through the Sites may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country subject to a United States or United Nation embargo or sanction; (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons (“SDN List”); (c) to anyone on the United States Commerce Department’s Denied Persons List or Entity List; or (d) to anyone subject to the same or similar restrictions as the foregoing.  By using any software available at or through the Sites, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any of the above lists or subject to such restrictions.

 

18:  Choice of Law

You agree that these Terms & Conditions constitute the agreement between you and us and shall be construed and governed in accordance with the laws of the State of California, regardless of the conflicts of law provisions of the jurisdiction where you live or in any other jurisdiction.  For any disputes deemed not subject to binding individual arbitration, as provided in the section immediately below, you and we agree to submit to the exclusive jurisdiction of the Superior Court of Fresno County, California, or, if federal court jurisdiction exists, the United States District Court for the Eastern District of California, Fresno Division.  You and we agree to waive any jurisdictional, venue, or inconvenient forum objections to such courts (without affecting either party’s rights to remove a case to federal court if permissible), as well as waive any right to a jury trial.  Any law or regulation providing that the language of a contract shall be construed against the drafter will not apply to these Terms & Conditions.  This paragraph will be interpreted as broadly as applicable law permits.

 

19:  Binding Arbitration/Dispute Resolution; No Class Actions

PLEASE READ THIS SECTION CAREFULLY.  IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

You may opt-out of Binding Arbitration by providing written notice of your decision to Hummingbird Digital Media, Inc., 653 W Fallbrook Ave Ste. 101, Fresno, CA, 93711 within thirty (30) days of the date that you first use our Sites.  You may not opt-out of the class action waiver.

If you have a dispute concerning any aspect of these Terms & Conditions or the Sites, you agree to first contact customer support on our Sites or by completing a customer support ticket.  If Customer Support doesn’t resolve your dispute to your satisfaction, you agree to start a formal dispute proceeding by completing a Dispute Form.  Completing a Dispute Form will elevate your dispute and we will attempt to resolve the matter to your satisfaction within thirty business (30) days of our receipt of your Dispute Form.  We may choose to provide you with a final written settlement offer during this process.  If we provide you with a final written settlement offer and you don’t accept it, or we cannot otherwise satisfactorily resolve your dispute, you agree to submit your dispute for resolution by binding arbitration before the American Arbitration Association (“AAA”) in the county where you live by filing a separate Demand for Arbitration online by following the instructions at https://apps.adr.org/webfile/.  This means that you and we agree to a dispute-resolution process where we submit any dispute to a neutral arbitrator (not a judge or jury) that makes the final decision to resolve the dispute.  AAA uses experienced professionals to arbitrate disputes, which helps you and us resolve any disputes fairly, but more quickly and efficiently than going to court.  The arbitrator may award the same remedies to you individually as a court could, but only to the extent required to satisfy your individual claim.  The arbitrator’s decision is final, except for a limited review by courts under the U.S. Federal Arbitration Act, and can be enforced like any other court order or judgment.

If we have a dispute, we will submit our dispute for resolution by arbitration before the AAA in Fresno, California.

If either party files for arbitration, it will be conducted in accordance with the then-current AAA Commercial Arbitration Rules.  The arbitrator will have exclusive authority to resolve any dispute including any claim that all or any part of the Terms & Conditions, including this provision, are unenforceable.  If you proceed to arbitration, we will pay all AAA filing, administration, and arbitrator fees unless the arbitrator determines that your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). For claims you bring for Ten Thousand Dollars ($10,000.00 USD) or less, in aggregate, you can choose whether the arbitration proceeds in person, by telephone, or based only on submissions.  The arbitrator may award any form of individual or equitable relief, including injunctive relief.  Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction.  If you initiate arbitration and the arbitrator awards you relief that is greater than our final written settlement offer made before an arbitrator was selected, then we will pay you a minimum recovery of Five Hundred Dollars ($500.00 USD), plus we will reimburse any reasonable expenses incurred by your attorney, if any, including fees reasonably accrued for investigating, preparing, and pursuing the claim in arbitration.  Under some laws we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration.  You and your attorneys are not required to keep the results of the arbitration confidential.  This provision shall not be construed to preclude any party from seeking injunctive relief to protect its rights pending an outcome in arbitration.

 

Class Action Waiver

To the maximum extent permitted by applicable law, you and we agree to only bring disputes in an individual capacity and shall not: seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (e.g., private attorney general actions); or consolidate or combine individual proceedings or permit an arbitrator to do so without the express consent of all parties to these Terms & Conditions and all other actions or arbitrations.  You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in such a suit.  The Terms & Conditions do not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above.  This provision preventing you from bringing, joining, or participating in class action lawsuits is an independent agreement.

If all or any provision of this Section 19 (Binding Arbitration) is found invalid, unenforceable, or illegal, then you and we agree that the provision will be severed and the rest of these Terms & Conditions shall remain in effect and be construed as if any severed provision had not been included.  The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, you and we agree that it will not be severable; this entire Binding Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in these Terms & Conditions.  Under no circumstances shall arbitration be conducted on a class basis without our express consent.

YOU ACKNOWLEDGE AND AGREE THAT, VIA YOUR ACCEPTANCE OF THESE DISPUTE RESOLUTION PROVISIONS, YOU WAIVE ANY RIGHT TO A JURY TRIAL, AS WELL AS YOUR RIGHT TO BRING, JOIN, OR PARTICIPATE AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS ACTION SUIT OR MULTI-PARTY ARBITRATION BROUGHT AGAINST US, ANY PERSON OR ENTITY RELATED TO US, OR A SERVICE PROVIDER USED BY US TO PROVIDE THE SERVICES.

 

20: Integration and Conflicting Terms; Severability

These Terms & Conditions and the Privacy Policy referenced herein constitute the complete and exclusive agreement between you and us with respect to use of the Sites and supersede any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written or electronic form, between you and us concerning the use of the Sites.  These Terms & Conditions and the Privacy Policy shall be construed as consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the terms of the Privacy Policy shall control over the Terms & Conditions.

Any provision of these Terms & Conditions that is determined by a court of competent jurisdiction to be unenforceable in any jurisdiction shall be severable from these Terms & Conditions in that jurisdiction without in any way invalidating the remaining provisions of these Terms & Conditions.  The unenforceability of any provision in a given jurisdiction shall not make that provision unenforceable in any other jurisdiction.

 

21: Changes to Terms of Service

We may modify these Terms & Conditions at any time, at our sole discretion, without specific notice to you, provided, however, that (a) any amendment or modification to the provisions applicable to dispute resolution shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification (as the Terms & Conditions in effect at the time of the subject dispute or incurred changes shall govern, as applicable).  The latest version of these Terms and Conditions will be posted to the www.booksio.com Site, and you should review these Terms and Conditions prior to using the Sites.  Any such changes to these Terms and Conditions will become effective immediately and your continued use of the Sites and your Account following such notification will be deemed confirmation of your acceptance of such changes.  You will not be eligible for any compensation because you cannot use any part of the Sites or because of a failure, suspension, or withdrawal of all or part of the Sites.  Your continued use of the Sites following the posting of revised Terms & Conditions means that you accept and agree to the changes.

 

22:  Notices

Hummingbird Digital Media, Inc. will give you any necessary notices by posting them on the www.booksio.com Site.  You authorize Hummingbird Digital Media, Inc. to send notices via electronic mail as well if Hummingbird Digital Media, Inc. decides, in its sole discretion, to do so.  You agree to check the www.booksio.com Site for notices, and that you will be considered to have received a notice when it is made available to you by posting on the www.booksio.com Site.

 

23.  Notice to California Users

Residents of California who use the Sites are entitled to know there are no charges to the consumer for use of our Sites, other than the cost of any products or services purchased therein and any applicable taxes, shipping fees, and other charges associated with such purchases.  Unless otherwise stated, these charges appear for each purchase on the order confirmation pages relating to each purchase and e-mailed to the consumer after purchase.  We reserve the right to change our pricing.  You may contact us to resolve a complaint regarding any aspect of our service by emailing us at support@booksio.com.

 

24.  Assignment

These Terms & Conditions are personal to you and your Account.  You may not assign these Terms & Conditions without our prior written consent.  We may assign any of our rights and delegate any of our duties hereunder at any time, without your consent, at our sole discretion.  These Terms & Conditions and Privacy Policy will inure to the benefit of our successors, assigns, and licensors.

 

25.  Force Majeure

Neither Hummingbird Digital Media, Inc. nor any service provider, including but not limited to, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives, or affiliates, shall be liable for performance of its obligations under these Terms and Conditions if it is prevented or delayed from performing such obligations as a result of (a) any provision of any present or future law or regulation of any state or of the United States, (b) any act of God, war, civil unrest, or emergency condition, (c) the unavailability, failure or interruption of the Internet; or (d) any other circumstances beyond the reasonable control of the Company or its service providers including but not limited to service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives, or affiliates.

 

26.  Waiver

The failure to require performance of any provision in these Terms & Conditions shall not affect in any way the full right to require such performance at any time thereafter, nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself or of any other provision in these Terms & Conditions.

27.  Headings

The section headings used in these Terms and Conditions are for convenience only.

 

28.  Contact Us

To “opt out” or make other choices about receiving communications, to update your personal information, or to submit comments or ask questions about our Privacy Policy, please contact us by email at support@booksio.com.

Customer Service Contact Information

Phone: 1-877-307-1451
Email: support@booksio.com

Address:
653 W Fallbrook Ave.
Ste. 101
Fresno, California 93711