Terms of Service

These Terms of Service (“Agreement”) govern your access to and use of the service(s) (“Service”) provided by Take Comics, Inc. d/b/a Graphic.ly and Graphicly.com (“Take Comics”, “we” or “us”) through our website (the “Site”) or through other communication platforms, including applications on your mobile device (each, an “Application”). Please read this Agreement carefully. By accessing the Service, you agree to be bound by this Agreement. If you do not wish to be bound by this Agreement, you may not access or use the Service. By downloading an Application and any associated media, printed materials, and “online” or electronic documentation (collectively, “Licensed Software”), you agree to be bound by this Agreement and by the applicable End User License Agreement (“EULA”), which is hereby incorporated by reference into this Agreement. If you do not wish to be bound by the EULA or this Agreement, do not download or use the Licensed Software.

Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted in connection with such features.  All such additional terms and the Take Comics Privacy Policy (“Privacy Policy”) are hereby incorporated by reference into this Agreement. 

This Agreement may be amended by Take Comics from time to time.  If we make material changes to the Agreement, we will notify you through the Application interface or at your primary email address, as specified in your member account information.  You agree that such amended Agreement will be effective thirty (30) days after our dispatch of a notice to you, and your continued access to the Site or use of the Service or Application thereafter shall constitute your acceptance of the amended Agreement.  

1.             Eligibility.  The Service is intended solely for access and use by individuals that are thirteen (13) years of age or older and have agreed to this Agreement.  By accessing and using the Service, you represent that you are at least thirteen (13) years old.  By using the Service, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.

2.             User Accounts. To become a registered user and be eligible to access and use the Service (except those portions of the Site to which Take Comics allows access without registration), you must create a user account (“Account”) by registering on the Site or through an Application. To open an Account, you must complete the registration process for the Service by providing Take Comics with the information requested on the registration form and accepting this Agreement. You shall promptly update all registration data to keep it true, accurate, current, and complete. Should Take Comics suspect that any information you provide is not true, accurate, current or complete, Take Comics has the right to suspend or terminate your use of the Service. When you register, Take Comics will ask you to provide a user name and password. You will be responsible for all activities that occur under your user name and password and therefore you should keep your password confidential. You agree to notify Take Comics immediately of any unauthorized use of your user name or password or if you believe that your password is no longer confidential. Take Comics reserves the right to require you to alter your user name and/or password if Take Comics believes that your Account is no longer secure. By creating an Account, you hereby authorize Take Comics to use your account information in accordance with the Privacy Policy for the purposes of sending periodic mailings to you about Take Comics products, services, and news.

3.             Use of the Service; Objectionable Material.  You must use the Service in a manner consistent with any and all applicable laws and regulations.  You may not use any forum available on the Service for advertising to, or solicitation of, other members to buy or sell any products or services. You acknowledge and agree that by using the Service or downloading Products (defined in Section 5.1), you may encounter content that may be regarded as offensive, indecent, or objectionable and that you use the Service and download Products at your sole risk. Take Comics will have no liability to you for offensive, indecent, or objectionable content.

4.             Third Party Sites and Services.  Our Service contains links to Internet sites maintained by third parties. These links are provided for your reference only. We do not control, operate or endorse in any respect information, products, or services on such third-party sites and are not responsible for their content. Many third-party sites have their own terms of use that differ from ours. This Agreement only covers our Service and does not cover any other site.

5.             Fees; Payments. 

5.1          Products.  Take Comics provides certain digital comics and other related products for a fee (“Products”). These fees are displayed with the applicable Product, and if you choose to receive Products from us, you agree to the fee policies specified through the Service which are hereby incorporated herein. Prices and availability of all Products are subject to change at any time. You must provide Take Comics with valid credit card information or other payment information prior to registering for the Service. You agree that Take Comics may charge fees to your credit card or other payment account for Products that you receive and that you will pay all applicable fees assessed to your Account. Take Comics may also accept payment through gift cards or gift certificates. If the total amount of a transaction is greater than the balance available on any such gift cards or gift certificates, we may refuse the transaction or charge your designated credit card or payment account for the balance. Our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties.

5.2          Pre-Orders.  Certain Products may be available for pre-order. By pre-ordering such Products, you are authorizing Take Comics to automatically charge your Account and download the Product when it becomes available. You may cancel your pre-order prior to the time the Product becomes available. Not all Products may be available for pre-order.

5.3          Subscriptions.  Certain Products may be available for download on a subscription basis. A subscription includes all currently available (if any) and future issues of a Product (“Subscription”). Not all Products may be available by Subscription. We will charge you the full price of a Subscription when you subscribe.  Such Subscription is non-refundable; except that, if a publisher delivers fewer issues for a Subscription than specified through the Service at the time of your payment transaction), we will credit to your Account an amount equal to the pro-rated price of the Subscription. For example, if a Subscription has twenty-two planned issues at the time of your payment transaction, but the publisher only delivers twenty issues, we will credit to your Account an amount equal to ((the price of the subscription) x (2 / 22)). This credit will only be available for future transactions with Take Comics and will not be a refund to your credit card or payment account. Currently available purchased issues (if any) of a Subscription are available for download at the time of your payment transaction. Future purchased issues of a Subscription will become available for download as they become generally available on our Service. You must connect to the Service and download any remaining issues in a Subscription within ninety (90) days after the final issue becomes generally available on the Service (or such other time period as may be specified on the purchase page), after which such remaining issues may no longer be available for download as part of the Subscription purchase.

6.             Delivery.  If delivery of a Product on any authorized device or computer is interrupted, your transaction will be included in your download queue. You may resume the delivery through the appropriate application for that device or computer. On occasion, technical problems may delay or prevent delivery of your Product. Your sole and exclusive remedy with respect to a Product that is not delivered within a reasonable period will be replacement of such Product. Upon download or delivery of a Product to you, you are responsible for any loss or damage to that Product, and Take Comics will have no liability to you for any loss, damage, or destruction of that Product.

7.             Licenses; Proprietary Rights. 

7.1          License to the Service.  Subject to the terms and conditions of this Agreement, Take Comics grants you a limited, non-exclusive, and revocable license to access and use the Service only to the extent necessary to use the Service as described by Take Comics on the Site. Take Comics reserves the right to change or discontinue the Service (or any feature thereof) at any time, with or without notice.

7.2          License to Products.  Subject to the terms and conditions of this Agreement (including payment of the applicable fees and the Usage Rules in Section 7.3), Take Comics grants you a limited, non-exclusive, and revocable license to download and display Products on each of your devices licensed by Take Comics under the applicable EULA solely for your personal, non-commercial use.

7.3          Restrictions.  The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Service or the Products or make the Service or the Products available to any third party; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service or the Products; (c) you shall not access the Service in order to build a similar or competitive product or service or attempt to access the Service through any unapproved interface; (d) you will not use any device, software, or routine to damage, interfere or attempt to interfere with any application, function, or use of the Service; (e) except as expressly stated herein, no part of the Service or Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; and (f) any future release, update, or other addition to functionality of the Service (if any) shall be subject to the terms of this Agreement unless Take Comics expressly states otherwise. You shall preserve all copyright and other proprietary rights notices on the Products and all copies thereof. The Products may contain security technology that limits your usage of the Products. You agree to use the Products in compliance with the following rules (“Usage Rules”): You may view each Product on only one of your Take Comics-authorized devices at any given time.

7.4          Proprietary Rights.  Take Comics and its licensors own and retain all proprietary rights in the Service and the Products.  The Service and Products contain the copyrighted material, trademarks, and other proprietary information of Take Comics and its licensors.  Except as expressly specified in this Agreement, the provision of the Service and the Products does not transfer to you or any third party any rights in or ownership of such intellectual property, including, without limitation, any intellectual property rights in any Take Comics or third-party content.

8.             Content Posted by Users on the Service. 

8.1          Take Comics Removal.  You understand and agree that, to the extent it is able to do so, Take Comics has the right to (but is not obligated to): review any content, communication, information, works of authorship, messages, photos, videos, URLs, profiles and the like (collectively, "Content") that is published, displayed, or transmitted ("posted") on or through the Service for other users, and delete any such Content for any reason in its sole discretion.  You further understand and agree that Take Comics has the right to take any action, including deletion of Content or the barring of access to the Service, in response to conduct or Content that in the sole judgment of Take Comics violates this Agreement or is offensive, illegal, or violates the rights of, harms, or threatens the safety of, other users or third parties.  You are solely responsible for the Content that you post on the Service.

8.2          License.  By posting Content to any area of the Service available to other users ("Publicly Posted Content"), you grant to Take Comics an irrevocable, perpetual, non-exclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, and otherwise use or exploit such Publicly Posted Content and to prepare derivative works of, or incorporate into other works, such Publicly Posted Content, and to grant sublicenses of the foregoing rights.  In addition, you represent and warrant that you have the right to grant the foregoing license and to post the Publicly Posted Content and that you will not post any illegal or Prohibited Content (defined below) and will not infringe, misappropriate, violate or contravene any third party rights (including, without limitation, any intellectual property rights).

8.3          Prohibited Content.  The following is a partial list of Content that is prohibited on the Service (“Prohibited Content”), which Take Comics has the right to take into account in taking any action in its sole discretion, including actions to delete or prevent access to Content, to limit or bar access to the Service, or to terminate or limit any relationship between you and Take Comics or the Service.  Take Comics reserves the right (but is not obligated) to investigate and to take appropriate legal action in its sole discretion for any violation of this provision, including without limitation, removing Prohibited Content from the Service, notifying the appropriate authorities regarding and identifying the source of Prohibited Content and terminating the Accounts of such violators.  Prohibited Content includes, without limitation, Content that:

(a)           is patently offensive to the online community, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

(b)           bullies, harasses or advocates harassment of another person;

(c)           includes "junk mail" or "chain letters";

(d)           promotes or contains information that you know, or should know, is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

(e)           promotes or contains an illegal and/or unauthorized copy of another person’s copyrighted work (whether marked as such, or not);

(f)            contains a virus, time bomb, worm, corrupted file, or other software routine capable of disrupting, disabling, or harming the operation of, or providing unauthorized access to, the Service, Site, or Licensed Software;

(g)           is obscene;

(h)           exploits people under the age of 18;

(i)            provides instructional information about illegal activities;

(j)            undermines the quality, appeal, or usefulness of the Service; or

(k)           solicits passwords or personal identifying information of any kind for commercial or unlawful purposes from other members, and engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes. 

9.             Copyright Policy.  You may not post, distribute, or reproduce in any way any Take Comics copyrighted material, trademarks, or other proprietary information unless you have the right to do so.  If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512.   At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Site or Service of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Take Comics’s Copyright Agent for notice of claims of copyright infringement can be reached by writing the following: 275 S. 40th St. Boulder, CO 80305.

10.          Term.  Subject to this Section, this Agreement will remain in full force and effect while you use the Service and/or maintain an Account.  You may terminate your Account at any time, for any reason through the appropriate account management page on the device application, if available, or by sending an e-mail to support@graphicly.com. Take Comics has the right to terminate this Agreement, or suspend or terminate your access to the Service, immediately effective upon sending notice to you at the email address you provide in your Account.  Upon termination of this Agreement by either party, your right to access and use the Service will terminate immediately.  You agree that we will have no liability to you for any costs, losses, damages, or liabilities arising out of or related to our termination of this Agreement.  Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 8 to 18.

11.          User Disputes and Release.  You are solely responsible for your interactions with other Users. Take Comics reserves the right, but has no obligation, to monitor, or take any action Take Comics deems appropriate regarding, disputes between you and other members.  To the extent permitted under applicable laws, you hereby release Take Comics from any and all claims or liability related to: (a) any Content posted on the Service; (b) the conduct, whether online or offline, of any other user; and (c) termination or denial of access to or use of the Service.

You hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

12.          Warranty Disclaimer.  To the extent permitted under applicable laws, the Service and Products are provided "As-is" and as available and Take Comics expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties or conditions of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or non-infringement.  Take Comics does not guarantee and does not promise any specific results from the use of the Service or Products.  Take Comics makes no warranty that the Service will be uninterrupted, free of viruses or other harmful code, timely, secure, or error-free.  You agree that Take Comics is not responsible for the timeliness, deletion, mis-delivery, or failure to store any communications or personalization or preference settings.  Take Comics does not assume any obligation to monitor activities conducted on the Service.

Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.

13.          Limitation on Liability.  To the extent permitted under applicable laws, Take Comics shall not be liable to you, or any third party, for any lost profits, indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to your use of the Service, Site, Products, or Licensed Software under this Agreement, even if Take Comics has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, Take Comics’s liability to you for any cause whatsoever, and regardless of the form of the action, will at all times be limited to the greater of (1) an amount equal to the amounts paid by you to Take Comics in the twelve (12) months preceding the claim; and (2) Fifty U.S. Dollars (US $50).  The existence of one or more claims will not serve to enlarge this limit.  You acknowledge and agree that the limitations of Take Comics’s liability are (a) reasonable in light of your ability to use the Service, Site, Products, or Licensed Software at the fees charged by Take Comics (if any), and (b) essential and fundamental parts of this agreement which are necessary to induce Take Comics to enter into this agreement.

Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply to you.

14.          Indemnity.  You agree to indemnify and hold Take Comics, its subsidiaries, affiliates, officers, agents, and other partners and their employees, harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney's fees, brought by any third party arising out of or relating to: (a) your use of the Service, Site, Products, or Licensed Software, or (b) arising from your breach of this Agreement. 

15.          Electronic Communications. The communications between you and Take Comics use electronic means, whether you visit the Site, use an Application, or send us emails, or whether Take Comics posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Take Comics in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Take Comics provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing.  The foregoing does not affect your non-waivable rights.

16.          Other.  This Agreement shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. This Agreement, the Privacy Policy, and the EULA constitutes the entire agreement between you and Take Comics regarding the use of the Service, Site, Products, and Licensed Software. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.  Notwithstanding any other provisions herein, the parties agree that no person or entity (including any other member) shall be deemed a third-party beneficiary of this Agreement.  If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of Take Comics to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.  Please contact us with any questions regarding this Agreement at support@graphicly.com.

17.          Copyright/Trademark Information.  Copyright © 2010, Take Comics Inc. All rights reserved.  The trademarks, logos and service marks (“Marks”) displayed on the Service are our property or may be the property of third parties.  Certain uses of Marks require the permission of the owner.  If you are interested in using our Marks for any purpose, please contact support@graphicly.com to determine whether such a use requires authorization.

18.          Disclosures.  Take Comics is located at 1630 30th St. Suite A #272, Boulder, CO 80301.  If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You should note that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.  Current providers of such protections can be found at: http://www.en.wikipedia.org/wiki/List_of_Content_Control_Software.

These Terms of Service were last updated on January  26, 2010.