NetGalley Platform Services Terms and Conditions for Pay-Per-Title Clients

Last updated: December 16, 2024

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These NetGalley Platform Services Terms and Conditions for Pay-Per-Title Clients (referred to herein as these “T&Cs” or the “Agreement”) is entered into between NetGalley, LLC (hereinafter referred to as "NETGALLEY"), of 44 Merrimac Street, Newburyport, MA 01950 USA, and you, the individual or entity checking a box or clicking on a button on the Plans and Pricing page indicating agreement to these T&Cs. PLEASE READ THESE T&Cs CAREFULLY BECAUSE THEY ARE LEGALLY BINDING.

If you are an individual entering into this Agreement on behalf of an entity, you represent and warrant that you are authorized to enter into contracts on behalf of such entity, and to thereby bind such entity to the Agreement. This Agreement is effective as of the date you checked a box or clicked on a button, as referenced above, indicating agreement to these T&Cs (the “Effective Date”). The individual or the entity, as applicable, who/that entered into this Agreement is referred to herein as “CLIENT.” NETGALLEY and CLIENT together are referred to herein as the “Parties”, and each individually as a “Party.”

WHEREAS, NETGALLEY provides access to its hosted sites NetGalley.com and NetGalley.co.uk and related services, including reporting and other features and functionality provided in connection with such sites (collectively, the “Platform”) to its clients;

WHEREAS, CLIENT desires to access the Platform, and NETGALLEY desires to provide CLIENT access to the Platform, subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. PLATFORM ACCESS, SERVICES AND RESERVATION OF RIGHTS.

1. Subject to and conditioned on CLIENT’s and its/his/her Users’ (defined below) compliance with the terms and conditions of this Agreement, NETGALLEY hereby grants CLIENT a non-exclusive, non-transferable (except in compliance with Section 12(b)) right to access and use the Platform during the Term. Such access and use is limited to CLIENT’s internal use and use by its/his/her Users. NETGALLEY shall provide such access to CLIENT via a CLIENT account. CLIENT will select and upload digital content files, in PDF, EPUB, and/or MP3 format, or other digital format agreed upon by the Parties (each such instance of a digital content file uploaded to the Platform by CLIENT is referred to herein as a "Title”).
2. NETGALLEY will maintain the Platform allowing for access by reviewers, librarians, booksellers, educators, and media, and other third parties that are granted access (collectively, “Members”). NETGALLEY shall condition a Member’s access to Titles on the Member’s agreement to NETGALLEY’s online Terms of Use, which terms shall state in words or substance that any use of Titles is for non-commercial use only and that the Member may not sell or distribute such Titles.
3. NETGALLEY shall be responsible for all storage, hosting, and delivery costs associated with NETGALLEY’s provision of Titles via the Platform under this Agreement.
4. NETGALLEY will perform the services provided under this Agreement in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
5. The Platform and all NETGALLEY documentation, reports, designs, inventions, improvements, and other deliverables developed by NETGALLEY or its licensors and all intellectual property rights therein, shall be owned exclusively by NETGALLEY or its licensors, as applicable, and CLIENT shall have no right or interest therein. NETGALLEY reserves the right, in its sole and absolute discretion, to make any changes to the Platform that it deems necessary or prudent to comply with applicable law or that NETGALLEY deems necessary or useful to maintain or enhance: (i) the quality or delivery of NETGALLEY's services to its clients; (ii) the competitive strength of or market for NETGALLEY's services; or (iii) the Platform's cost efficiency or performance.

2. OPTIONAL MARKETING SERVICES.

1. NETGALLEY may, in its sole and absolute discretion, offer optional marketing services, such as marketing promotions and/or campaigns, that are not included with the services provided under this Agreement (“Optional Marketing Services”). CLIENT may request to participate in and receive Optional Marketing Services, if offered by NETGALLEY, via reservation request forms provided by NETGALLEY (“Optional Marketing Services Request”); provided, however, that the nature and scope of Optional Marketing Services, if any, are determined at the sole and absolute discretion of NETGALLEY. Furthermore, CLIENT acknowledges and agrees that, if CLIENT submits an Optional Marketing Services Request, NETGALLEY may accept or reject such request or make a revised offer of Optional Marketing Services in response to such request in NETGALLEY’s sole and absolute discretion. CLIENT understands and agrees that NETGALLEY makes no promise or guarantee that CLIENT will be able to participate in or receive Optional Marketing Services or any particular aspect of such services.
2. Any Optional Marketing Services are subject to terms and conditions, including terms and conditions with respect to fees, cancellation fees, rescheduling and deadlines for CLIENT to provide related materials. Such terms and conditions are set forth on reservation request forms for Optional Marketing Services. CLIENT understands that it/he/she must agree to such terms and conditions upon submitting an Optional Marketing Services Request.
3. In the event CLIENT participates in and/or receives any Optional Marketing Services, NETGALLEY does not make any promise or guarantee with respect to the generation of any sales, revenue, profits or any other results or outcome from any such services. CLIENT further acknowledges and agrees that results or outcomes experienced by CLIENT or any third parties from previous Optional Marketing Services or other similar services, if any, do not guarantee the same or similar results or outcomes or any other particular results or outcomes with respect to Optional Marketing Services. CLIENT understands and agrees that, if it/he/she participates in and/or receives any Optional Marketing Services, CLIENT cannot rely on any forecast, estimate or other expectation of any results or outcomes.
4. Any discounted or promotional pricing on Optional Marketing Services offered at the time CLIENT initially orders pay-per-title services under these T&Cs will not be offered for or applied to pricing for Optional Marketing Services CLIENT requests or orders subsequently after placing the initial order. Regardless of when Optional Marketing Services are purchased by CLIENT, all terms and conditions set forth herein apply to such Optional Marketing Services.

3. CLIENT RESPONSIBILITIES AND CONTROL OF TITLES.

1. CLIENT will select availability and has control of certain options regarding how Members access and read the Titles (“Reading Options”) for each Title. CLIENT has exclusive control over which Titles are available on the Platform. CLIENT has the exclusive right to designate which Members can view the Titles, through approval of requests or specific invitations. Reading Options can be set at the account level and will be applied by default to each new Title. CLIENT can also modify Reading Options for an individual Title at any time. NETGALLEY’s recommended default Reading Options, which may change from time to time, are described at: https://netgalleyclient.zendesk.com/hc/en-us/articles/4414495857559.
2. As between CLIENT and NETGALLEY, CLIENT is and will remain the sole and exclusive owner of all right, title, and interest in and to all Titles, including all intellectual property rights relating thereto, subject to the following rights and permissions granted in this Section 3(b). CLIENT hereby irrevocably grants to NETGALLEY all such rights and permissions in or relating to the Titles and any other content or data uploaded or otherwise submitted by or on behalf of CLIENT to the Platform or to NETGALLEY (such content and data and the Titles are collectively referred to herein as “CLIENT Material”) as are necessary for NETGALLEY to perform its obligations or take action permitted under the Agreement directly or through its subcontractors and/or service providers. CLIENT shall provide all cooperation and assistance as NETGALLEY may reasonably request to enable NETGALLEY to exercise its rights and perform its obligations under and in connection with this Agreement.
3. CLIENT shall be responsible for the CLIENT Material. CLIENT shall not upload or otherwise submit any CLIENT Material to the Platform that: (i) is false, misleading or defamatory; (ii) is harmful or threatening to any individual; (iii) contains hate messages or personal attacks against others; or (iv) violates another person's or entity's intellectual property rights, privacy rights, or other legal rights.
4. CLIENT will not communicate or otherwise interact with Members in a way that (i) is harmful, threatening, or intimidating; (ii) contains hate messages or personal attacks against others; (iii) is defamatory; or (iv) constitutes or contains unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of unauthorized solicitation.
5. CLIENT shall not at any time, directly or indirectly (i) copy, modify, reverse engineer, or create derivative works of the Platform or documentation provided by NETGALLEY, in whole or in part; (ii) do any of the following unless such right(s) (and only to the extent such right(s)) have been granted to CLIENT under this Agreement, an addendum to this Agreement or a separate written agreement between the Parties: rent, lease, lend, sell, license, sublicense or otherwise make available the Platform to third parties in a manner that is outside the scope of rights granted to CLIENT under this Agreement; (iii) use the Platform, or any documentation provided by NETGALLEY, in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law; (iv) tamper with, hack or otherwise corrupt or compromise the Platform or its security; or (v) use, or attempt to use, the Platform for purposes other than for which it is expressly designed.
6. CLIENT acknowledges that CLIENT’s employees and any other CLIENT authorized users who access the Platform (“Users”) are subject to NETGALLEY’S online Terms of Use. CLIENT and its/his/her Users are responsible for their own Platform account, including the security of access credentials for such account. NETGALLEY is not responsible or liable for any actions by CLIENT or its/his/her Users taken through or with respect to their Platform accounts including, but not limited to, setting or changing any security or other settings, deleting any data, inactivation or deletion of accounts, or management of Titles.

4. SECURITY:

1. NETGALLEY will maintain Titles in a database with appropriate security measures available and designed to safeguard the Titles against unauthorized or unlawful access or modification and against accidental loss, destruction or damage. NETGALLEY will make available to CLIENT certain security options for the Titles, including digital rights management (DRM) or other security technology. The current security options available to CLIENT, which may change from time to time, are described at: https://netgalleyclient.zendesk.com/hc/en-us/articles/4414502733975. If CLIENT becomes aware of any material deficiencies in the security measures offered or implemented by NETGALLEY to protect Titles, CLIENT shall promptly notify NETGALLEY in writing (“Security Notice”) and NETGALLEY will use commercially reasonable efforts to protect the affected Title(s) and remedy the deficiencies in security measures. Such remedial efforts by NETGALLEY may include, but are not necessarily limited to, removing the impacted Titles from access to additional Members until the deficiency is resolved, if appropriate. If NETGALLEY is not able to rectify the deficiency or implement alternative reasonable security measures within 30 days of NETGALLEY’s receipt of the Security Notice, CLIENT may suspend or terminate this Agreement, effective immediately, on written notice to NETGALLEY.
2. NETGALLEY will not translate a Title into other languages whether through the addition of text-to-speech, translation functionality or otherwise. CLIENT and/or its/his/her licensors retain all right, title, and interest in all intellectual property rights in its/his/her Titles.
3. NETGALLEY may modify Titles based on the Reading Options CLIENT selects to account for required security-enabled file types (such as AZW, Social DRM, W3C, LCPL, or other formats). Such changes shall not alter the textual, audio, or graphic content of Titles.
4. CLIENT can archive Titles (“Archived Titles”), which then become unavailable for future requests from Members and restricts new downloads.
5. CLIENT acknowledges that options to modify or remove security for Titles exist in the Platform. NETGALLEY agrees that CLIENT shall have the sole right to modify file security options for CLIENT’s account and Titles, including removing security from any Title. NETGALLEY is not responsible or liable for any unauthorized access or misuse of Titles or other CLIENT Material for which any security measures have been removed or modified by CLIENT.
6. NETGALLEY shall notify CLIENT, within a commercially reasonable period, of any materially significant security breaches that occur or of any materially significant vulnerabilities in its internal security system of which it becomes aware pertaining to the security of the Titles or User accounts. If NETGALLEY becomes aware of any unauthorized or improper use of User accounts or the Titles including, without limitation, the unauthorized downloading or sharing of Titles by a Member or other third party, NETGALLEY shall, within a commercially reasonable period, (i) notify CLIENT of such unauthorized or improper use, and (ii) take commercially reasonable steps to prevent further such unauthorized or improper use.
7. CLIENT acknowledges that as a part of the service provided by NETGALLEY, the CLIENT has access to certain data and information, including information that may be considered Personal Information (defined below), of Members who have requested the CLIENT’s Titles. CLIENT shall implement and maintain appropriate technical and organizational measures designed to safeguard Member Personal Information against unauthorized or unlawful access, copying, modification, storage, reproduction, display, distribution, or other processing, and against accidental loss, destruction, or damage. CLIENT understands and agrees that, without the express consent of the Member, CLIENT may not use a Member’s Personal Information for any purpose other than to communicate with the Member in relation to the Member’s requests or activity on the Platform. Without limiting the generality of the foregoing, the CLIENT cannot use a Member’s email address or other Personal Information for email marketing campaigns or other marketing activities without the express consent of the Member. As used in this Agreement, “Personal Information” means information that (i) identifies, relates to, describes, references, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person; or (ii) is considered “personal information”, “personal data” or “personally identifiable information” under applicable law.
8. CLIENT shall be responsible for complying with all applicable laws related to the privacy, protection and processing of Personal Information.

5. TERM & TERMINATION:

1. This Agreement shall commence on the Effective Date and continue thereafter for a period of six (6) months, unless terminated earlier as provided herein (the “Term”).
2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after the non-breaching Party provides the breaching Party with written notice of such breach. Furthermore, if CLIENT has not delivered the book title, ISBN, cover image, and interior file for the Title to NETGALLEY within six (6) months of the Effective Date, NETGALLEY reserves the right to, and may in its discretion, terminate CLIENT’s account access. In the event of such termination of CLIENT account access, no refund of any amounts paid by CLIENT will be issued.
3. Without limiting any other rights or remedies NETGALLEY may have, NETGALLEY may: (i) remove any CLIENT Material from the Platform, without notice, if any such material is in violation of Section 3(c) above; and (ii) terminate this Agreement, effective immediately upon written notice to CLIENT, if CLIENT breaches Section 3(d) or Section 3(e) above.
4. Upon expiration or earlier termination of this Agreement: (i) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; (ii) NETGALLEY shall archive the Title(s), which will no longer be available on the Platform; and (iii) at CLIENT’s request, NETGALLEY shall delete all CLIENT data and material in the Platform including, but not limited to, CLIENT Material, any other content files and any ancillary files such as cover images, author photos, and video trailers. No expiration or termination will affect CLIENT’s obligation to pay all fees or other charges that may have become due before such expiration or termination, or entitle CLIENT to any refund. NETGALLEY reserves the right to refuse to offer or provide future services to CLIENT, so long as such refusal is not in violation of any applicable law, if NETGALLEY terminates this Agreement for material breach under Section 5(b) above or NETGALLEY has a good faith reason for such refusal.
5. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 5(d), this Section 5(e), Section 8, Section 10, Section 11 and Section 12.

6. COMPENSATION:

1. In consideration for the grant of rights to access and use the Platform and NETGALLEY’s provision of related services, CLIENT agrees to pay NETGALLEY, by credit card payment, amounts billed for fulfillment of the services specified on the NETGALLEY Plans and Pricing page (the “Fees”) pursuant to any applicable payment terms stated thereon.
2. All Fees paid under this Agreement are nonrefundable.
3. If CLIENT fails to make any payment when due, without limiting NETGALLEY’s other rights and remedies: (i) NETGALLEY may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) if such failure continues for thirty (30) days or more past the due date, NETGALLEY may suspend provision of services and CLIENT’s access to the Platform or any portion thereof until such amounts are paid in full.
4. All Fees and other amounts payable by CLIENT under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, CLIENT is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by CLIENT hereunder, other than any taxes imposed on NETGALLEY's income.

7. RELATIONSHIP OF THE PARTIES:

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

8. CONFIDENTIAL INFORMATION:

1. From time to time during the Term, either Party may disclose or make available to the other Party information about its/his/her business affairs, confidential intellectual property, trade secrets, products, services, technology, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party.
2. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, officers, directors, members, agents, service providers, subcontractors, tax advisors and legal advisors who: (i) have a need to know the Confidential Information for the receiving Party to exercise its/his/her rights or perform its/his/her obligations hereunder; (ii) have been informed of the confidential nature of the Confidential Information and the receiving Party's obligations under this Section 8; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or (2) to establish or exercise a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

9. REPRESENTATIONS AND WARRANTIES:

1. Each Party represents and warrants to the other Party that it/he/she has the full right, power, and authority to enter into and perform its/his/her obligations and grant the rights, licenses, consents, and authorizations it/he/she grants or is required to grant under this Agreement.
2. CLIENT represents and warrants to NETGALLEY that CLIENT owns or otherwise has and will have the necessary rights and consents in and relating to the CLIENT Material so that, as uploaded or otherwise submitted to or through the Platform or received by NETGALLEY and processed in accordance with this Agreement, the CLIENT Material does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.

10. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.

1. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9(a), THE PLATFORM IS PROVIDED "AS IS." NETGALLEY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NETGALLEY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, OR RESULTS OF THE USE THEREOF, WILL: (i) MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS; (ii) GENERATE ANY SALES, PROFIT OR REVENUE; (iii) OPERATE WITHOUT INTERRUPTION; OR (iv) ACHIEVE ANY INTENDED OR EXPECTED RESULT.
2. IN NO EVENT WILL NETGALLEY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES OFFERED OR PROVIDED BY NETGALLEY (INCLUDING, BUT NOT LIMITED TO, ANY OPTIONAL MARKETING SERVICES) UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; OR (iv) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER NETGALLEY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

11. INDEMNIFICATION:

1. NETGALLEY shall indemnify, defend, and hold harmless CLIENT from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by CLIENT resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Platform infringes, misappropriates or violates such third party’s intellectual property rights, provided that CLIENT promptly notifies NETGALLEY in writing of the claim, cooperates with NETGALLEY, and allows NETGALLEY sole authority to control the defense and settlement of such claim. This Section 11(a) will not apply to the extent that the alleged infringement arises from: (i) use of the Platform in combination with data, software, hardware, equipment, or technology not provided by NETGALLEY or authorized by NETGALLEY in writing; (ii) modifications to the Platform not made by NETGALLEY; or (iii) CLIENT Material.
2. CLIENT shall indemnify, hold harmless, and, at NETGALLEY’s option, defend NETGALLEY from and against any Losses incurred by NETGALLEY resulting from any Third-Party Claim that the CLIENT Material, or any use of the CLIENT Material in accordance with this Agreement, infringes, misappropriates or violates such third party’s intellectual property rights or other rights and any Third-Party Claim based on CLIENT’s (i) negligence or willful misconduct; (ii) processing of Personal Information; (iii) use of the Platform in a manner not authorized by this Agreement; (iv) use of the Platform in combination with data, software, hardware, equipment or technology not provided by NETGALLEY or authorized by NETGALLEY in writing; or (v) modifications to the Platform not made by NETGALLEY, provided that CLIENT may not settle any Third-Party Claim against NETGALLEY unless NETGALLEY consents to such settlement, and further provided that NETGALLEY will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

12. GENERAL TERMS:

1. This Agreement shall be governed by and construed in accordance with the laws of Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Massachusetts. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Massachusetts in each case located in Essex County, Massachusetts, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
2. CLIENT may not assign any of its/his/her rights or delegate any of its/his/her obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of NETGALLEY, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its/his/her obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
3. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
4. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement (“Notices”) must be in writing and, if to NETGALLEY, addressed to NETGALLEY at the address set forth in the preamble above, or, if to CLIENT, addressed to CLIENT at the address provided by CLIENT in connection with purchasing the services hereunder (or to such other address that may be designated by a Party for receiving Notices from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission to an active email address used by the receiving Party for purposes of communications under this Agreement which shall include, with respect to CLIENT, the email address provided by CLIENT when signing up for the services provided hereunder), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
5. The headings in this Agreement are purely for convenience and are not to be used as an aid in interpreting its terms. The Parties agree that they participated equally in negotiating the terms of this Agreement and that this Agreement shall not be construed against any Party as the author or drafter of the Agreement.
6. This Agreement constitutes the sole and entire Agreement between the Parties with respect to the subject matter of this Agreement and replaces any and all previous and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
7. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
8. If the performance of the Agreement by any Party is prevented, restricted, or interfered with by reason of fire or other casualty or accident, acts of God, severe weather conditions, war or other violence, any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency, national or regional emergency, telecommunication breakdowns, power outages or shortages, or any other act or condition whatsoever beyond the reasonable control of such Party (“Force Majeure Condition”), the Party whose performance is so affected, on giving prompt notice to the other Party, shall be excused from such performance. In the event such Force Majeure Condition continues for thirty (30) days or longer, then the Party whose performance is not affected by such condition may, at its/his/her option and without liability to the other Party, terminate the Agreement.
9. Although NETGALLEY may from time to time revise the NetGalley Platform Services Terms and Conditions for Pay-Per-Title Clients posted on this page, the Agreement between you and NETGALLEY is the version of the T&Cs posted with the most recent Version Date at the time you checked a box or clicked on a button, as referenced above, indicating agreement to these T&Cs. When NETGALLEY posts a revised version of the T&Cs, NETGALLEY will update the Version Date at the top of this page and shall make the previous version(s) of such terms and conditions available for download. For clarification and avoidance of doubt, a revised version of the NetGalley Platform Services Terms and Conditions for Pay-Per-Title Clients posted after the Effective Date shall not automatically amend or otherwise modify the Agreement between you and NETGALLEY. No amendment to or modification of the Agreement is effective unless it is in compliance with Section 12(f) above.