Terms & Conditions
THIS IS A CONTRACT. BY USING THIS WEBSITE, YOU INDICATE YOUR AGREEMENT TO THE FOLLOWING TERMS AND CONDITIONS:
PERMITTED USE / CONFIDENTIAL INFORMATION / RIGHTS & PERMISSIONS / DISCLAIMER
ON-LINE REFERENCE USE ONLY. EACH ACCESS IS BY PERMISSION ONLY. THIS PRIVATE WEB SITE WHICH IS PROVIDED WITHOUT WARRANTY IS FOR YOUR IMMEDIATE PERSONAL EDUCATIONAL NON-COMMERCIAL INTERNET VIEWING ONLY. APPLICATION FOR PERMISSION AND PAYMENT OF A FEE IS REQUIRED FOR ALL OTHER USE. READ THIS ENTIRE CONTRACT BEFORE USING THIS WEBSITE.
CLICK TO ACCEPT: Any access to or use of this website or its Internet domain name(s) or IP address(es), torrent(s), or content, including but not limited to clicking (or the equivalent) on any link or torrent (other than to view this User Agreement web page), or sending the character string “/I_ACCEPT_the_User_Agreement/” to our web server as you must do to gain access to our files, or clicking on your send button to send us an e-mail, or the like, all indicate and signify that “I ACCEPT” this user agreement, and each such action indicates your intent to thereby attach your electronic signature to this agreement, and your unconditional acknowledgment and acceptance of and agreement to all of the terms and conditions herein without modification, and that this agreement shall take effect immediately; to indicate “I DECLINE” simply make no use and close all windows of this website. Provided, however, that you may not view or otherwise make any access or use of this website whatsoever unless you (or your guardian or legal representative who agrees to this user agreement on your behalf) are capable of entering into a binding contract, nor in any jurisdiction where this user agreement would not be enforceable. You agree that your use of this website is irrefutable acknowledgment by you that you have read, understood, and agreed to each and every term and provision of this User Agreement, including but not limited to the provisions hereof regarding donations and dispute resolution/arbitration, and that if and when you violate this User Agreement that you have received timely Legal Notice of Infringement. If you are the owner or operator of equipment used to access this website or its content, or to communicate with us or our equipment, by allowing such use you thereby consent and agree to be bound by the terms and conditions of this User Agreement. If you are acting as an employee and/or on behalf of an organization(s), you represent and warrant that you are authorized to act as agent and that you accept this user agreement both as an individual and as agent on behalf of your employer and organization(s). You may access our content only directly through this website and not through any third party website, nor may you allow anyone access to the content on this website without visiting this website. This website and all associated files, torrents, content, e-mail, or other intellectual property regardless of where located or how accessed and any media on which it may reside is only licensed as set forth herein, never sold, and is and shall become and remain the sole and exclusive property of nxmac.com or the successor thereof which shall have the right to access to retrieve, remove, or modify. You acknowledge and agree to the validity of the nxmac.com copyrights, trademarks and service marks, trade secrets, and other proprietary laws and rights both in the United States and internationally, and our claim of ownership of the intellectual property that comprises this website, its files and other content, and that nxmac.com has established significant rights and valuable good will therein. You agree not to impair the title, rights and interest of nxmac.com in such marks and other intellectual property, including but limited to files and other content, names, pseudonyms, full name(s), shortened name(s), Internet domain name(s), and the acronym(s) of this website, and associated entities and author(s) thereof and their logo(s). You agree not to make any claim to, apply to register, or register any such nxmac.com mark or any confusingly similar marks or other nxmac.com intellectual property. All use of any and all nxmac.com marks and/or other intellectual property on or relating to this website or derived therefrom shall inure solely to the benefit of nxmac.com. You stipulate, warrant and agree that you will not challenge or dispute our proprietary rights or the rights of content donors, including but not limited to as stated herein, to the intellectual or other property which comprises this website and its domain(s), server(s), trademark(s), pages, files, torrents, text, and other apparatus and content (“website”), nor challenge or dispute validity of our copyright or the originality of this website, including but not limited to the originality of each and every one of its files, and acknowledge that we prohibit access to all who do not so agree, and further stipulate, warrant and agree, notwithstanding any case law to the contrary, that your using or accessing this website including but not limited to one or more of its files, or allowing or facilitating others to do so, without such prior agreement and acceptance of our proprietary rights, or in any manner contrary to this User Agreement, or which makes this website or portion thereof, or the intellectual property, pages, torrents, text or other content therefrom available (or obtained from us) to those who have not accepted or are not bound by this User Agreement, or by otherwise circumventing this User Agreement or any legal or technological means that we have utilized in an attempt to limit access, copying, or use of this website or such property, violates this User Agreement and shall constitute actual harm to our property (not in limitation of the foregoing, to be construed as no less serious than by analogy tampering with and disabling the lock on a site or bank vault door or circumventing a copy protection mechanism so that the contents are are left unprotected), and shall constitute trespass, conversion, or a like tort, whether such tort be conventional, or unknown in the statutory and/or common law and so requiring definition or redefinition so as to apply in the context of this website and intellectual property, and whether such like tort be previously named, or unnamed. Images and other content on this website are made available only under the terms and conditions set forth herein, any use shall inure to our benefit, and you agree not to take any action which would make such files or other content accessible to or available for unauthorized use by third parties who have not agreed to this User Agreement and to additionally compensate us for any loss resulting from such action and the consequences arising therefrom, including your payment of use fees and penalties for each such third party use resulting from your violation of this User Agreement.
Courts have upheld the ability of content owners to restrict access to their digital works, flatly rejecting “free speech” and “fair use” arguments: “the Court expressed confidence in ‘the likelihood … that this decision will serve notice on others … and thus contribute to a climate of appropriate respect for intellectual property rights in an age in which the excitement of ready access to untold quantities of information has blurred in some minds the fact that taking what is not yours and not freely offered to you is stealing.’” concluding ” … nor has an art student a valid constitutional claim to fair use of a painting by NFOing it in a site.”
U.S. Court of Appeals, 2nd Circuit, November 28, 2001.
COPYRIGHTS; NO RIGHTS CLEARANCE: The contents of this website and related e-mail and of linked websites may be subject to additional restrictions including but not limited to copyright and other rights of other parties. We neither warrant nor represent that your use of files or other content displayed on this website or otherwise available from us will not infringe the rights of third parties not owned by or affiliated with nxmac.com or this website. Not all files are available for all uses. Use of some materials may be restricted by the terms of gift or purchase agreements, donor restrictions, privacy and publicity rights, licensing and trademarks. Some individual web pages and files on this website are separately copyrighted. Written permission of the copyright owners is required for the transmission or reproduction of protected items as provided by U.S. Copyright Law (Title 17, U. S. C.) or by the copyright laws of other nations and the prohibition against unauthorized or unlawful reproduction shall include all United States domestic use as well as protections afforded under any international forum or law, including, but not limited to the General Agreement on Tariffs and Trade. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. Access to and use of this website and related content is limited to legal purposes and activities, and you are responsible for complying with all laws and regulations including but not limited to any applicable local laws in your locality, you agree that you will pay any and all taxes, including but not limited to any applicable sales or use taxes and provide us with written proof of payment upon request, and that any content licensed to you by us is only for use of content that you are authorized and legally permitted to use. NFOs or other creative works, generally, are the physical property of collection holding them, while literary rights, including copyright, if any, may belong to the authors or their heirs and assigns. Nothing herein shall be construed as conferring any license or right under any copyright, except as explicitly provided in the paragraph on permissions, below. It may be difficult or even impossible to determine what copyright or other restrictions may apply to historical collections and archives and permission to publish does not constitute a copyright clearance. There are also no model or other releases known to exist for files on this website. Often the owners only hold the physical rights and/or the electronic rights, possibly non-exclusive, to files or other content in their collections, and in some instances the original content may be in the public domain and/or available elsewhere. We regret that we are unable to provide legal advice regarding rights clearances or other legal matters and urge you to consult an intellectual property attorney if you have legal concerns. Photo credits including but not limited to statements on this website or in our e-mail(s) that particular file(s) or other content is from or “Courtesy of [a named donor.]” are included only as a source credit and/or “thank you” for donations and should be considered by you when determining what rights clearances may be needed, but may be missing, incomplete, or erroneous and may not be relied upon to determine ownership for purposes of obtaining permissions and copyright clearances, nor may any donor give you permission to download any file or other content from this website, nor shall this website or nxmac.com become or be considered a party to any transaction you enter into with any third party, donor, or linked website. Description of any third party product, service, or activity or a link thereto does not imply any determination regarding its quality, suitability, safety, or lawfulness, which is entirely your responsibility. You stipulate and agree that unauthorized copying of one or more files or other content from this website in lieu of licensing a sufficient number of authorized copies where such work is available for license in the medium or format desired shall be conclusively presumed unfair, and, notwithstanding any case law to the contrary, you hereby waive the right to claim or assert that such unauthorized copying in lieu of licensing constitutes “fair use” and that any copyright registration granted to us by the United States shall be conclusively presumed to be a valid copyright of all of the content of this website and all portions thereof in all jurisdictions, and that such copyright shall apply to each file depicted on this website, and to variations of such files, including, but not limited to changes in the size, resolution, file format, or tangible form of expression. We make no representations or warranties with respect to ownership of or copyrights, if any, in files or other content on this website or obtained from us, and do not represent others who may claim to be authors or owners of copyright or other rights thereto. You shall obtain all permission(s) when required and are solely responsible for determining the existence of such rights, satisfying any copyright and other use restrictions, intangible rights, or related interests, for obtaining any and all permissions and releases, for guarding against the infringement of those rights that may be held elsewhere, and for paying any associated fees necessary for the reproduction or use of the materials and for rights to any proprietary material depicted, and you expressly assume all responsibility for observing applicable laws of copyright, literary right, trespass, conversion, property right, privacy, publicity, and libel. You acknowledge that digital files on this website or obtained from us are our valuable property, that viewing of files and other website content is a valuable consideration, and agree that all provisions of this User Agreement including but not limited to use restrictions shall additionally apply on a contractual basis regardless of the copyright status of any file or other website content.
NXMac.com does not endorse external websites which should open in a new browser window. This website may be hosted by NXMac on one or more web servers, each with their own domain name(s), and also has hyperlinks or references (“links”) to other “third-party” external websites that are not part of the NXMac web site, and may include information regarding third party offers. NXMac.com has not investigated or verified the legitimacy of such merchants, does not endorse, is not a party to, and takes no responsibility for third party offers whether on a linked website, published on this website, or found elsewhere, nor for the persons or entities operating such websites. If you choose to do business with such third parties, which you agree is entirely at your own risk, we strongly urge you to check best prices, verify the merchant’s reputation, and make payments only by credit card so that you will have the possibility of recourse by initiating a chargeback should the merchant prove dishonest, and you agree not to complain to us if you don’t follow our advice and as a result have a problem. All trademarks and brands are the property of their respective owners, and any use of third-party trademarks on this website is for nominative and/or descriptive purposes only, and does not imply any third-party affiliation, sponsorship, or endorsement. You agree not to use any of our names, pseudonyms, domain names, or marks in any advertising, publicity, or in any other commercial manner without our prior written consent. The NXMac web site’s author, nxmac.com, copyright holder(s), other rights holders, licensor(s), and other parties that provide, operate, and/or license this website and its content (and their officers, directors, shareholders, representatives, agents, affiliates, employees, and servants), or the like (“we” or “us”) have no control over or responsibility for other websites’ content or availability, or for changes therein, nor for the accuracy of information published or submitted by others, including but not limited to offers made by third parties, and we are not affiliated with, sponsored or endorsed by any named or linked railroad, site, library, company, institution, organization, contributor, book author, publisher, seller, auction, website, or other third party, nor shall any information or link on this website be considered a listing of any item for sale or auction, nor shall any third party offer be considered an offer by us, nor shall the contents of any linked website be used for any purpose other than authorized display. No relationship exists between this website and any linked third-party website or named third party, except as stated herein, and no inference or assumption should be made and no representation is implied that the NXMac site, nxmac.com or its affiliates in any manner operates, edits, or controls any third-party website nor such third-party website’s services, products, or information. Specifically, but not in limitation of the foregoing, the NXMac is not affiliated with, connected with or otherwise sponsored or endorsed by any other site. NXMac, nxmac.com and its affiliates disclaim, do not endorse, are not a party to, and take no responsibility for third party offers, including but not limited to those which may appear on this or any linked website nor in any e-mail or other communication. Links to other websites, credit lines, announcements about books and other products, services, or offers, and responses to e-mail inquiries, are provided solely as a convenience and at the discretion of nxmac.com, do not imply permission, membership, or affiliation, shall not in any way be construed as or constitute a description, accurate depiction, position regarding any issue in controversy, authentication, appraisal, sponsorship or endorsement of any product, service, activity, business, organization, or person, and any offers, products, services, statements, opinions, content or information on any linked third-party website or third party submission included or described on this website are those of the respective author(s) or owners and not those of nxmac.com. Caveat Emptor. By your following a link to other website, this site does not thereby modify, copy, or reproduce information on the third-party website, and all such data is sent directly from the linked website to your browser without any intervention. The Uniform Resource Locator (URL) of the third-party website being linked can be seen in the lower left-hand corner of the screen by placing the mouse cursor over the link or otherwise determined by use of your browser, and also appears as the new location at the top of the screen (new browser window) after a link is followed, so there can be no confusion as to the source of linked material, and all trademarks and copyrights relating to all such third-party website(s) are owned and controlled by the third-party website(s) unless stated otherwise. Any third-party owned intellectual property inadvertently included on this website without necessary permission or any link on this website to a third-party’s website or intellectual property will be removed upon the copyright owner’s documented request or software can be used by third-party websites to block undesired requests or links. The nxmac.com domain’s actual “Administrative Contact” is the “designated agent” to which to report via e-mail alleged copyright infringements on this website under the Digital Millennium Copyright Act, P.L. 105-304 (or to send other legal notices) and such notification should identify in sufficient detail the allegedly infringed copyrighted work (please also specify your copyright registration number); provide sufficient information to allow us to identify and contact you; include the statements “I have a good faith belief that use of the copyrighted materials described above on the allegedly infringing web pages is not authorized by the copyright owner, its agent, or the law.” and “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”; and include your signature. By sending a communication directly or indirectly to nxmac.com notifying us of the availability of your product, service, or website, or by soliciting a link, you thereby grant us permission to link to your website and to include at our sole discretion your graphic(s) and/or logo or files derived therefrom on our website with the link(s). For the sole purpose of enabling and/or increasing the speed of immediate personal educational non-commercial internet viewing of this website as it currently exists, and as authorized herein, it is permitted to cache and/or buffer transient digital copies of this website or portions thereof, provided that: (1) the cached and/or buffered copies expire and are automatically and permanently erased in 24 hours or less, are not further moved or copied except transiently into volatile memory from which they are promptly erased to enable immediate viewing by a web browser as permitted hereunder, are not archived or retained, and are not written to an off-line or non-erasable medium; (2) the domain name, URL/internet address, and the content and appearance of this website and this user agreement are not changed or abridged, and the operation of the website is not impaired; and, (3) all copyright, user agreement, and other proprietary notices are presented in full and without modification. nxmac.com takes no position regarding the ownership or intellectual property rights or potential rights of any party by submitting a request or making application for permission to include files and/or other information in this website, nor by linking, nor by indicating credit for any contribution(s) to this website.
Links from other websites to are a welcome and permitted use of this website, however, by granting such permission, nxmac.com does not grant permission for links to individual file(s) [“inlined link(s)”] or to other elements or content of this website, nor to frame pages on this website within pages on other websites, nor to add advertisements or links to pages on this website. A link from another website to this website grants nxmac.com permission for a reciprocal link including, at the option of nxmac.com, the linking website’s logo, banner, or file derived therefrom, and permission, but not an obligation, in the event that such reciprocal link(s) becomes for any reason inoperative, for nxmac.com to mirror royalty free any internet content, or portion thereof, that would otherwise cause a broken link, or to use a third-party’s mirror or archive thereof. New users should first visit the Welcome page at . You may refer to this website only as the “NXMac”, may refer to the author only as “nxmac.com”, and may link only using the URL “https://nxmac.com”, and no alteration of the website name, author, or URL is permitted, nor is it permitted to disclose or publish the name or other personally identifiable information regarding any person or legal entity, as author, contributor, or other affiliate with this website without explicit written permission. Specifically, but not in limitation of the foregoing, indexing and/or linking to any URL at our website containing “/dl/” and/or “.jpg” or “.jpeg” or “.gif” or “.tif” or “.tiff” or “/download/” in the internet address is specifically prohibited, and you agree to follow the indexing rules specified in our robots.txt file, and to refrain from operating spider software in violation thereof. When links, descriptions, or other references to this website, its content, and/or content obtained from this website are removed from another website, whether at your discretion or at our request, such removal shall be total and complete, leaving no trace or indication on the Internet or elsewhere of the removed content or link(s), with no remaining partially functioning or broken remaining code, nor broken link(s), nor archived copies, nor shall any statement, caption, link, or rant describing, containing, or referring to the removed link(s) and/or content or any related communications remain or be added.
CONFIDENTIAL INFORMATION: You acknowledge and agree that the NXMac web site includes but is not limited to text, files, graphics, e-mails, or other material or content and any product, service, information, content, software, message, advertisement or any other work found at, aggregated at, contained on, distributed through, linked to or from, downloaded to or from or in any other manner accessed, and is confidential to nxmac.com and protected by proprietary rights and laws and that disclosure, including but not limited to copying, reproduction, and/or retransmission or other unauthorized use, or providing access to this website or its content to anyone who does not accept this User Agreement is strictly prohibited, and specifically, but not in limitation of the foregoing, you agree not to make disclosure of such confidential intellectual property and proprietary trade secret information on and comprising this website or portion(s) thereof to any third party who has not previously agreed to and is contractually bound to the terms and conditions of this User Agreement, and stipulate that such disclosure shall constitute contributory and vicarious infringement of our copyright and other rights hereunder. Furthermore, but not in limitation of the foregoing, you stipulate and agree that the digital modifications, enhancements, and/or restorations of files shown on this website which visually distinguish such files from the original from which they were derived and/or from other originals or copies thereof are trade secrets of such detail and type that human memory cannot retain or duplicate, and that such modifications, enhancements, and/or restorations are not apparent from inspection of only the modified files, so that the human web viewing of such files as authorized herein does not make possible disclosure of such trade secret information, and such disclosure requires copying by mechanical, electrical, or digital means or the like which is only authorized by specific permission. Additionally, any information concerning this website or its affiliates or the contributors to this website or their conclusions, views, and/or opinions which is not published on this website is also understood to be proprietary trade secret information and you agree not to disclose any such information which may come into your possession which is not published on this website and to also treat such information as confidential. In particular, you agree not to disclose or publish any information regarding the identity, personally identifiable information, the collections, or the opinions on issues of controversy of anonymous or pseudonymous authors or donors, nor, without our permission, attempt to identify, locate, or contact them in any way, whether in person, by telephone, or otherwise, nor to violate their rights including but not limited to their rights of privacy and publicity. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of confidential or proprietary information, and agree not to use confidential or proprietary information for your own or any third party’s benefit without our prior written approval, in each instance. When communicating with us, you shall not provide us with any materials, writing, file, information, content, attachment, or data that is confidential to you or any third party, and any notice, legend, or label to the contrary shall be without effect, and we shall be free to use anything that we receive from you in any manner that we deem appropriate.
In the event that you disagree with the content, opinions, or policies of this website or its author(s), your sole and exclusive remedy shall be to notify us by e-mail, and all changes or corrections, if any, shall be made at our sole discretion. You agree not to take any action that will impose a disproportionately large or unreasonable load on our computer web server(s), network, or other infrastructure. Please be mindful of the large amounts of data transfer needed to allow viewing of the NXMac web pages with multiple, large files, and avoid suddenly flooding the NXMac website with large numbers of unanticipated visitors. Suddenly increased, excess web traffic on this website as a result of your actions, including but not limited to publicity, reporting, or recommendations to others regarding this website on network television or radio or national publications or media, of more than one gigabyte of additional Internet data transfer per month, shall be at your expense, and you agree to reimburse nxmac.com for the resulting costs at the rate of the then prevailing additional data transfer charge made by the Internet provider(s) hosting this website. Access without permission by software robot, software program performing multiple, automated, successive requests, or other automated or high volume electronic process, is specifically prohibited. Merchants identified or linked on this website operate independently from the NXMac site, and we do not endorse any merchant or assume responsibility for transactions conducted with them. The selection and placement of advertisements linked on this website is determined automatically by a computer program for presumed relevance to the content of the webpage on which they appear, and have not been reviewed, endorsed, or approved by us; consequently maintaining editorial quality of ads is the responsibility of the ad provider. Due to scanning and digital restoration of files, the appearance of items may differ substantially from actual condition. Writings converted to text by optical character recognition (OCR) or other transcription from the original are stored more compactly, display more quickly, are made available for computer searching of content, enable hypertext linking, and may have increased legibility, but will contain transcription errors that may not be apparent and may include changed numbers, missing or moved content, and altered words or spelling. You may not rely upon the accuracy or timeliness of files, text, or other content of this website and agree to independently verify and compare with and utilize the original whenever a high level of accuracy is needed, nor should you attempt any act, event, or other information portrayed on this website. Item descriptions may be based on unverified dealer, seller, or author representations. The date “Last Updated” which appears on many pages on this website is an approximation which generally signifies the date of the last significant or major update, is not an automated file modification date, is for convenience only, and may not reflect technical, typographic, or minor additions, deletions, or corrections, nor changes performed by automated software made to multiple pages; consequently, if monitoring minor changes on a particular page is of interest, please use an automated notification service. This educational website and its content, files, links, and related information is provided for informational purposes only. The information supplied on this web site is general in nature and should not be relied upon to make decisions, investments, or purchases. This website or other information or opinion obtained from us may not be used to authenticate or determine the value of collectibles, and does not constitute an offer to sell, or the solicitation of an offer to buy any securities or collectibles and must not be relied upon in connection with any purchase or investment decision. The contents of this website and of any e-mail or other communication from nxmac.com merely represents the then current view of nxmac.com or the author and should not be interpreted to be a commitment on the part of nxmac.com or the author, nor an expert opinion. Opinions expressed may be those of contributing authors and not necessarily those of nxmac.com. Caveat lector.
ENTIRE AGREEMENT: You agree that this web page alone constitutes the entire User Agreement, that it is the complete and exclusive statement of your agreement with us, constitutes a writing signed by you, supersedes all prior agreements and representations between the parties, that no variation of the terms of this User Agreement will be enforceable against us, that it is subject to change which shall be effective immediately, and you waive the right to claim, contest, or assert that this User Agreement was modified, canceled, superseded, or changed by any oral agreement, purchase order, e-mail, notice, or other writing, course of conduct, waiver, implication, or estoppel. This User Agreement shall not be canceled, modified, amended or in any way altered, nor may it be modified by custom and usage of trade or course of dealing. No one has the authority to vary these terms and conditions, and no purported modification by any person, orally or in writing, may be relied upon or deemed binding, and we note our objection thereto, nor shall any writing, undertaking, representation, or warranty made by anyone affiliated with this website which is inconsistent with this User Agreement be binding. Consequently you may not send us your contracts, offers, requirements, forms, purchase orders, files, gift restrictions, confidentiality notices, or other communications containing terms and/or conditions which differ from this User Agreement which if received in violation of the foregoing will be ignored if possible, and will have no effect, but which may if deemed necessary in our sole discretion be subject to legal review at your expense. Our failure to respond or take affirmative action in response to any communication or information sent or provided to us should be understood to mean that we did not receive the communication or information, did not read it, chose not to respond, or disagreed, and should not be construed to indicate our acquiescence, agreement, approval, or consent. Specifically, but not in limitation of the forgoing, this restricted rights website and any related software, data, files, or other content are not available for licensing to United States Government End Users or others under the terms of FAR 52.227-19 (“COMMERCIAL COMPUTER SOFTWARE?RESTRICTED RIGHTS”), but only under the more restrictive terms as set forth herein.
Use of an nxmac.com/appdn.net e-mail “from” or “reply-to” address does not mean that the message came from us and even if authorized does not imply any such authority or affiliation with nxmac.com or this website, nor an ownership or agency relationship, and any claimed authority, title, affiliation, ownership, or relationship by any person or entity not stated on this website shall be conclusively presumed to be invalid and may not be relied upon. Any message received from us whether by fax, e-mail, or other method, including any attachments, contains confidential information intended for a specific individual and purpose and is protected by law. If you are not the intended recipient, please contact the sender immediately by reply e-mail or fax and destroy all copies. You are hereby notified that any disclosure, copying, or distribution of such a message, or the taking of any action based on it, is strictly prohibited. You are warned that computer viruses can be transmitted via e-mail, so the recipient of any e-mail should check it and any attachments for the presence of viruses. (Computer viruses and spammers frequently forge e-mail “from” addresses that they copy from infected computers or from the world wide web, so, unfortunately, there are many more unlawful e-mails sent pretending to come from us than e-mails that we actually send.) Even if the e-mail is legitimate, neither we nor the sender accepts liability for any damage caused by any virus transmitted by e-mail. E-mail transmission cannot be guaranteed to be secure or error-free because information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of any message or attachment, which arise as a result of e-mail or other electronic transmission.
This User Agreement may be assigned by nxmac.com. We reserve the right, in our sole discretion, to amend, modify, add, remove, or change these terms or portions thereof at any time, without prior notice, and to revoke permission for any cause or for no cause. Any changes become effective immediately upon posting of the revised User Agreement on this website, so please use a notification service and check this website online periodically for such changes. Contractually imposed use restrictions as specified herein may be more restrictive that those of copyright law. Continued use of this website or its contents indicates and shall be deemed to constitute your affirmation of your agreement to this entire User Agreement, including all such restrictions and any changes. To immediately stop using this website and its content is your only remedy should you not agree to any of the terms of this User Agreement, as amended. The terms and conditions of this User Agreement shall apply to all files, text, e-mail, webpages, and other content and to all our intellectual property wherever located, including this website, and including copies thereof in whole or part, or derived therefrom, regardless of the form, electronic, printed, or other, whenever or however obtained, including but not limited to when obtained from third parties with or without our permission. This website contains thousands of notices regarding this User Agreement, however, in the event that the language of such notice(s) is inconsistent with the language herein, the language of this User Agreement shall prevail. All notices under this User Agreement shall be in writing, such as e-mail. A printed version of this User Agreement shall be admissible in arbitration, judicial, or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This User Agreement, and any e-mail, facsimile, or other communications between you and us that is or can be printed by a computer onto paper, whether electronic or on paper, shall be considered to be “in writing” and you should print a paper copy of this User Agreement and any such personal electronic communication that is important to you and retain the copy for your records. If you are unwilling to receive this User Agreement, licensed content, or other communications from us electronically, you may not use this website or otherwise license content from us. Clause or paragraph titles and headings are for reading convenience, and hyperlinks are for convenience in accessing related information, and shall be disregarded when construing this instrument. References herein to the nxmac.com internet domain shall include any alias or mirror domain names or numbers. Receipt and/or use of any donations shall be governed entirely by this User Agreement and shall not constitute agreement or acceptance of any additional terms and conditions contained therein which shall be null and void. You may not transfer or assign this User Agreement and any such transfer or assignment will be null and void. You further agree to refrain from engaging in any conduct that is, or that we determine to be, in violation of this User Agreement. You acknowledge that remedies at law may be inadequate to protect against breach of our intellectual property rights, as prohibited under this Agreement, and you agree to the granting of injunctive relief without the posting of a bond or undertaking, for the protection of terms laid out in this User Agreement without proof of actual damages. You agree to undertake at your expense any measures and/or legal actions necessary to protect and defend our intellectual property by counsel reasonably accepted by us, and upon request to cooperate with us when we need to do so, and to cooperate with us as fully as reasonably required in the defense of any claim or in asserting any available defenses. We shall have the right at our sole discretion to assume the exclusive control and defense of any matter.
Nothing in this Agreement shall create any relationship between us, including but not limited to not creating any joint venture, joint employer, franchisee-franchisor, employer-employee, professional-client, organization-member, or principal-agent relationship between you and us, nor impose upon us any obligations for any losses, debts, taxes, or other obligations incurred by you or as a result of your actions. You agree that any time you expend relating to this website is only for your enjoyment and educational purposes and/or your educational hobby or collection and is not labor on behalf of us or our website, and that while you may donate property, including intellectual property (for which gifts we are most grateful!), you may not and agree not to work on our behalf or donate your labor to us, nor allow us to determine the manner or result of your activities or accomplishments, nor shall there be any economic exchange thereby.
Time is of the essence hereof. Non-enforcement of any provision herein does not constitute consent or waiver, and we reserve the right to enforce such provision at our sole discretion and at any time, without limitation, and regardless of any delay after we learn of any violation of the terms and conditions hereof and whether such delay be reasonable or unreasonable, and the waiver of any breach of any provision of this User Agreement shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver. If any portion of this agreement shall be held unenforceable, invalid or inoperative, then, (a) the remainder of this agreement shall be considered valid and operative, and the remaining provisions shall be nevertheless carried into effect, and (b) insofar as it is reasonable and possible, effect shall be given to the intent manifested by the portion held unenforceable, invalid or inoperative, and such portion shall be reformed only to the extent necessary to make it enforceable. The language of this User Agreement shall be construed as to its fair meaning and not strictly for or against any party.
WE WANT TO FULLFILL ANY OBLIGATIONS THAT WE MAY HAVE AND CONSEQUENTLY REQUIRE THAT YOU TELL US PROMPTLY IF THERE IS A PROBLEM AND GIVE US THE OPPORTUNITY TO TAKE REMEDIAL ACTION. IF YOU SHOULD CONCLUDE OR DISCOVER FACTS WHICH REASONABLY INDICATE THAT WE HAVE VIOLATED THIS USER AGREEMENT, OR FAILED TO PERFORM ANY OBLIGATIONS THAT WE MAY HAVE, OR HAVE BREACHED A LEGAL DUTY, OR THAT WE HAVE BEEN NEGLIGENT, YOU ARE REQUIRED TO NOTIFY nxmac.com BY E-MAIL AT THE EARLIEST OPPORTUNITY BUT WITHIN 12 HOURS, AND TO FOLLOW-UP BY PROVIDING ALL KNOWN SPECIFICS AND DETAILS BY E-MAIL NOTIFICATION TO [email protected] WITHIN TEN DAYS. IF YOU FAIL TO GIVE THE FOREGOING TIMELY NOTICES TO US, YOU SHALL THEREBY IRREVOCABLY WAIVE ALL CLAIMS AND CAUSES OF ACTION.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the NXMac site or this User Agreement must be filed by you within one (1) year after such claim or cause of action first arose, and regardless of when discovered, or be forever barred. The parties hereto stipulate and agree that (1) as the physical premises of the NXMac site consist of the site’s Internet webserver(s) and storage components thereof, these shall be construed as the site’s real property, and (2) that the electronic signals created when the website or content thereof is used constitute the NXMac site’s physical personal property; neither of which shall be trespassed or converted by unauthorized entry, access, transfer, or use and our right to exclude others from trespassing and/or converting such property or from our virtual network premises is not equivalent to any rights protected by copyright. The parties hereto further stipulate and agree that use of this website or the content thereof in violation of this User Agreement causes actual and irreparable harm inflicted by such conduct, constitutes a substantial interference with possession or the right thereto, and shall give rise to causes of action for trespass, conversion, or the like, false advertising, federal and state trademark dilution, computer fraud and abuse, unfair competition, misappropriation, interference with prospective economic advantage, unjust enrichment, copyright infringement, and other causes of action as applicable, and that no remedy or election we choose shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity, and that each file or graphic shall constitute a separate copyrighted work. We reserve the right in our sole and unfettered discretion to deny you access to this website at any time for any reason or for no reason.
PERMISSIONS – CONTENT LICENSING: Additional Terms and Conditions for License to Reproduce Still Images or other website content: nxmac.com strongly encourages permitted scholarly, educational, artistic, cultural, scientific, or commercial use that brings these files or other content to a wider audience. If you want permission, we sincerely hope that you don’t get scared off by all this legalese and give up! We can only be friendly and helpful if we hear from you, and you tell us exactly what you need. Once you are certain of your needs, please write to nxmac.com (or other owner or rights holder, as applicable) [“Licensor”] to apply to obtain access and use or reuse permission to reproduce file(s) or other content(s), in print, broadcast, video, film, CD-ROM, DVD-ROM, Internet or any other electronic medium. Include in the application and statement of intent to license and use one or more files (your “Request for License to Reproduce Still Images”) which constitutes your irrevocable order for a use license: the item requested; purpose, duration, and intended use of the requested item including the title or description, author or product, publisher or producer, publication or release date, placement location (at the interior, jacket, cover, or other location; or the URL if for Web use), size of the print run, territory (whether North America or worldwide), and whether in one language or all languages; the name or title, organization, street address, telephone, fax, and e-mail address of the proposed “Licensee”; and any special preferences (if any) regarding file resolution or format. Permission may be granted or withheld on a case by case basis at the sole discretion of Licensor. The fee for a license for reproduction of each of nxmac.com’s still files will be the same as set forth in the Use Fee Schedule (Still Images) and which schedule is incorporated herein by reference, for the one-time, one-use, non-exclusive, color publication use of each single file or other content for the purpose specified, and is never for an unlimited term, nor in perpetuity. The use fee for a license for reproduction of text is one thousandth of a U.S. dollar per word times the number of words times the number of copies, except in the case of Internet use where we generally follow the New York Times use fee schedule of one hundred dollars per article per 30 days or fraction thereof. The amount of the use fee may be adjusted by several cents in order to facilitate electronic tracking and verification of payments. Permitted use shall not exceed the use set forth in the application and statement of intent which shall be accurate. By submitting your request for permission or permissions inquiry, you are obligating yourself and your organization(s), if any, to license, immediately pay for, and to actually make use of the file(s) or other content requested in the manner as set forth in your application, should permission be granted. If you don’t want to buy a license, don’t e-mail us about permissions ? it’s that simple! You may not e-mail us regarding permissions if you lack decision authority. Your commitment to actually use the requested material is required because your request may set in motion a series of events whereby we expend considerable normally unreimbursed resources to comply with your request, which we do gladly and which we subsidize, but only in order to see these treasured files actually included with the best quality obtainable in publications, educational projects, or other approved endeavors. nxmac.com makes no additional charge for duplication of files or other content when obtained in digital format by Licensee via the Internet under this agreement and actually used as specified in the application, but to avoid non-productive use of our extremely limited resources, please carefully decide which files you actually want and be certain that you have an adequate budget to be able to afford the files you request prior to submitting your application, as you are obligating yourself and the use fees will apply in full to each licensed file, even if you later change your mind or decide not to reproduce a licensed file(s). ORDERS ONLY! ? Use the above link to “e-mail for permission” only after you have decided that you definitely will use the file(s) should your application be approved and you are certain that you wish to commit yourself by placing a firm order for a “License to Reproduce Still Images.” [If you are being paid to work on a project, please understand that we won’t do for free what you are being paid to do!] Please don’t burden our very limited resources with unproductive, speculative, tentative, or incomplete requests that fail to completely specify your exact requirements or which reflect your failure to decide in advance whether you actually wish to license the requested file(s), or to examine the Use Fee Schedule. Abandoned application fee: There is no application fee, but you will be charged a one hundred U.S. dollar non-refundable abandoned application fee per e-mail for EACH AND EVERY E-MAILed “Request for License to Reproduce Still Images,” permissions inquiry, follow-up, or other permissions related e-mail that we receive from you that fails to ultimately result in your licensing at least one file or other requested content, including but not limited to e-mails related to file selection, questions, billing, and collection of fees, except that no abandoned application fee will apply if you submit a complete application in your first e-mail but none of the files that you request are available for licensing. Also, we may, at our sole discretion, deem your application to have been abandoned and charge the abandoned application fee if you fail to respond to each of our e-mails within 72 hours, if you reject a license which we approve in response to your request, fail to make timely payment as required herein, or tell us that you do not want a license. Customized file non-use penalty: Additionally, in the event that we rescan and/or reprocess a requested file(s) in response to your request for a high resolution version, a different size or format, or other variation from the online file file displayed on this website (“customized file”), and/or in an attempt to supply you in our sole discretion with the best possible file quality and you then fail to live up to your obligation to use the requested file, thereby wasting our resources, you agree to pay liquidated damages of three hundred U.S. dollars per file for non-use of each such customized file which you fail to use, not subject to fee waiver, in addition to the use fee and any other applicable charges. All fees listed are subject to change, are non-refundable, are subject to a fifty U.S. dollar per file minimum fee (one hundred dollar per file minimum fee for customized files), and may be reduced or waived in special circumstances, when requested in advance at the time of application, at the sole discretion of nxmac.com and Licensor, and contingent on compliance with all terms of this User Agreement, but shall not be waived if use is without permission. The use fee for research access to the nxmac.com website for a commercial project is $1,000/month with a six month minimum which amount may be applied to the cost of any files licensed hereunder for publication use for the project. If you find that none of the categories in the Use Fee Schedule apply to your intended use, you do not understand the use fee schedule, you are uncertain as to the applicable fee, or you wish us to consider your request for a use fee which differs from the fee schedule, you MUST specify in your application a specific proposed use fee dollar amount that you are offering. If the requested information needed to determine which of several possibly applicable levels of fees should apply is not provided in the application, the higher fee shall apply. If the use fee is unspecified herein or in the fee schedule and not agreed in advance, it shall be one hundred dollars per file per month. Rush: Add fifty percent to the stated fees for rush requests. E-mails flagged for special treatment with high priority/importance headers or the like or requests that files be made available for use in seven days or less from the date of the request also constitute rush requests. Our acceptance of any request, inquiry, or order placed by you is expressly made conditional on your assent to the terms set forth in this User Agreement, and not those in your request, inquiry, order, or e-mail. Buyer beware: You authorize us to act upon any e-mail you send to us requesting permission or permissions or making inquiry as constituting an order, whether the e-mail is formal or informal, complete or incomplete, including requests posed as questions, inquiries, or sent using e-mail links on other pages of our website which provide sufficient information to allow us to process the request (and to choose an file fulfilling the request in the event that a specific file is not requested) which shall constitute a binding order requesting a license to reproduce still files. [We know this may seem strange to you, but our policy really is necessary because due to factual, legal and/or technical issues we often have to research requests, search for files, and/or rescan and/or reprocess files in order for us to respond to your e-mail and/or determine if we will be able to successfully fulfill your licensing request, and as a result we may be almost done with your order before we can answer your e-mail.] For example, if you write informally to ask us about using one or more files that you saw on the nxmac.com website and ask what the request will cost, while not specifying a price limit, you are thereby requesting and authorizing us to fill your order at a price consistent with the Use Fee Schedule and the terms and conditions of this User Agreement, and to let you know the total amount due for the license by sending you an electronic invoice which you are obligated to pay. Please pay close attention to what is written on this page: We want to avoid nasty surprises and disputes, so we are giving you fair warning that this is an e-commerce website with possibly unfamiliar policies and procedures and that clicking on the “e-mail nxmac.com for permission” link above means “buy a license now.” Use fee(s) are non-refundable and shall be fully and promptly paid at the earlier of the times of your receipt of (1) the licensed content; (2) a grant of permission of access thereto for the purpose requested; or, (3) our invoice requesting payment in response to your request, and shall be immediately due and payable in advance of publication or other licensed use, shall be by check signed by the Licensee, in U.S. dollars, drawn on a United States bank, or sent by electronic funds transfer for the benefit of the Licensee, and payment shall be delivered to us or the Licensor’s financial institution within ten days, according to the instructions you will receive. If Licensee sends payment by check mailed directly to the Licensor’s financial institution. Licensee shall also immediately fax a copy of the check to the Licensor. Redelivery: nxmac.com has very limited storage for custom files, so if you are notified by us that one or more licensed files that you requested are ready for download, it is your responsibility to immediately retrieve them before they are deleted from our web server. (Requests to re-upload or resend licensed custom files that you have lost or neglected to timely retrieve, if still available, will incur a redelivery use fee surcharge of twenty-five dollars per file, not subject to fee waiver.) In the event that you encounter any difficulty with licensed file files, other content, or the receipt or download thereof, you must notify us by e-mail within thirty-six hours. There will be an additional thirty U.S. dollar fee for returned checks or chargebacks which will also trigger abandoned application and non-use penalties, as applicable. Permission is subject to the payment by Licensee of all applicable fees, and the presence in your work of proper credit(s) and all legal notices required herein including but not limited to a proper notice of our copyright. In instances where payment is due, permission shall be granted conditionally upon the successful deposit by Licensor in the Licensor’s account and clearance of such payment check, or the deposit in the Licensor’s account of funds electronically transferred for the benefit of the Licensor, evidenced thereby, and a photocopy or facsimile of such check or record of such electronic funds transfer or ultimate electronic deposit shall confirm the identity of the applicable Licensee and Licensor and reconfirm the Licensee’s acceptance of this entire Agreement. Such license shall be null and void as if never issued upon violation of this user agreement, including but not limited to non-payment or lack of timely payment. The publication of such file(s) or other content shall also further reconfirm the Licensee’s acceptance of this entire Agreement without modification. Permission for such non-transferable, non-exclusive, non-sublicensable, one-time, one-use shall be limited to publication within a period of twelve months following the publication or release date specified in the application, or if unspecified in the application, from the date of our approval, except in the case of public display or performance, including but not limited to broadcast television or Internet use, which use shall not exceed the lesser of the time specified in your application or in the license granted or invoice therefor, or if unspecified then 60 days, and thereafter electronic access shall cease, which in the case of Internet use shall include erasing all digital copies and removing all links thereto. In the case of files licensed for single print or transparency copy exhibition or display the term of the license is the lesser of the duration of the exhibition or five years. For video use of still files, there is an additional charge for each home video format such as VHS or DVD in addition to the broadcast use fee. Permission for any subsequent use must be obtained separately. Permission with fee waiver if requested and granted for students’ school related project use is for non-publication educational use only during the current semester and does not grant permission for publication in print, electronic format, on the Internet, or otherwise. If you are requesting a fee waiver on behalf of a non-profit organization, to assist us in evaluating the request, please state in your application whether or not the organization charges the public for its product or service, and whether or not you are an unpaid volunteer. You are obligated to purchase a license under the terms and condition hereof for any file which you download from this website without permission or in violation of this User Agreement, should we decide in our sole discretion to offer you such a license. The NXMac site operates entirely on-line, communicates exclusively via the Internet, provides files as electronic commerce, and has no staff to handle phone calls or requestor supplied forms or paperwork; consequently, we provide an electronic invoice and IRS W-9 form only, and telephone support or billing, invoicing, or other documentation in paper hardcopy form by U.S. mail, fax, or otherwise, are not available. You agree to use only the provided permissions e-mail address (or other e-mail links on this website, as appropriate) and not to telephone us or content contributors with permissions or other requests, nor to attempt to circumvent the provisions of this agreement, and telephone calls placed in disregard of the foregoing will be charged at two hundred fifty dollars per telephone call. A printed version of your application e-mail(s) requesting permission, constituting your Request for License for Still Images, and/or facsimile or other electronic records shall be admissible in arbitration, judicial, or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Your act of sending such email(s) to us whether directly or indirectly and/or your clicking your e-mail send button indicates your intent thereby to attach your electronic signature to such e-mailed application requesting permission or other communication and to this entire User Agreement. Licensee shall also supply Licensor within thirty calendar days of the date of publication with two complementary donated entire copies of the best edition of any written or published work, computer file, or software, including but not limited to book, article, video, CD-ROM, or DVD-ROM products in which the licensed file(s) or other content is included, for inclusion in the NXMac site. (If licensed for Web use, Licensee shall provide access to the locations(s) where the work including the licensed file(s) or other content is located, instead of delivering physical copies.) Permission, if granted, to a licensee for use on the Internet or other electronic medium which operates by providing digital files does not grant permission for end user capture nor downloading of such files, nor subsequent use thereof, nor any use not permitted herein, nor use beyond the limited term of this license, does not grant permission for files to be posted on any website which does not prohibit their capture, downloading, or subsequent use, and does not grant permission unless both of the following conditions are met: (1) the nxmac.com copyright notice is prominently displayed; and, (2) that such capture and/or downloading, and such subsequent use without the separate permission of nxmac.com are both contractually prohibited in the licensee’s legally binding end user licensing agreement. If a licensed file(s) or other content is published electronically, including but not limited to when using html or any other format, the files shall be at a low screen resolution only, not in excess of five hundred pixels wide, and the software or webpage code shall be written so as to prevent unauthorized copying, downloading, saving, or other capture of files or other licensed content, and so as to require that the end user must click to indicate their consent and acceptance of the end user license agreement prior to being given access to the licensed file(s) or other content. nxmac.com (or other owner or rights holder, as applicable) shall retain its own right to reproduce such file or other content, or to grant others such permission, and shall retain ownership, copyright, and all other tangible and intangible rights (including but not limited to ownership of originals, scans, files, data, negatives, digital media, and photoduplicates or copies thereof whether reprographic, electronic, digital or otherwise, [other than tangible rights for those final permitted reproductions published by Licensee under this license for distribution to others] which if not retained by Licensor shall be destroyed or returned to Licensor upon expiration of the limited term of the license). You may retain file(s) obtained from us under the provisions of this paragraph only for the limited purposes for which you obtained permission, but may possess or use a only single copy of each such digital file on a single computer and on a single hard drive or other computer medium, may not distribute such digital file(s) on a computer network except as explicitly permitted, and will promptly return or destroy all copies of such file(s) when no longer needed for the purpose stated in your request for permission. Licensee acknowledges that permission if granted is only for publication or other use as specified in the application during the limited term of the license, does not constitute a transfer of ownership, nor a first sale, and such permission is granted only to the extent of the Licensor’s ownership of rights related to the file(s) or other content, and is not a rights clearance for third party rights, property, files or other content included on this website, or derivative works therefrom, which clearance licensee must obtain separately from such third party or parties when required, and our permission grants you no rights until you also obtain all third party permissions and releases that may be required, copies of which you agree to provide to us upon request. In the event that you are requesting licensing of such a third party file from us rather than directly from the third party, or our derivative work therefrom, for convenience, because such file is available in digital format from us, or to take advantage of file processing or digital restoration that we may have performed on such third party file, and are concerned about the total licensing cost including possible additional use fees which may be payable to one or more such third parties, please include in your application a request for a specific proposed adjustment in our use fee to partially offset such additional use fees to be paid to one or more such third parties, which request we will be pleased to consider on a case by case basis. No license or right under any patent or trademark will be granted nor shall such be construed as being conferred hereunder by implication, estoppel or otherwise. Any permission granted is not transferable and Licensee shall not sublicense or permit others to reproduce the licensed file or other content, and shall refer such requests by others for permission to reproduce to the Licensor. The Licensor for nxmac.com is a California Corporation owned by author, nxmac.com, which has sole authority to operate and license this website and its content. Licensee acknowledges that nxmac.com is not granting permission on behalf of nor acting as agent for any other owner or rights holder. Licensee shall maintain the integrity of files or other content used, and use shall not be unlawful, misleading, defamatory, ridiculing, libelous, or otherwise inappropriate, altered from the original appearance, form, meaning, or intent of the author, nor compete or detract from existing or planned use by nxmac.com, nor in a manner which suggests an association with or endorsement of any product or service, nor in an historically inaccurate manner or publication, nor damaging to our or the rightsholder’s reputation. Images will be obtained over the Internet in RGB jpeg format as displayed on this website, unless otherwise agreed in advance and subject to availability and limited resources, delays, and cancellation, notwithstanding any deadline noted in the application, nor shall preferences (if any) including those regarding file resolution, format, or delivery method specified in the application be considered requirements. Any needed conversion of digital files into prints or need to burn CD’s or DVD’s shall be your responsibility and at your expense. Consequently, please do not request high resolution or tiff format files (which are often in the 2-24 MB size range) if you have a slow or unreliable internet connection and would have difficulty downloading large files, as there will be an additional seventy-five dollar CD-ROM fee (per CD-ROM) if you request files on CD and we are able to comply, however there will be no charge for delivery via CD-ROM if we should elect at our sole discretion to use this alternate method of delivery, such as for an order sufficiently large as to exceed our on-line server storage capacity. nxmac.com reserves the right to restrict the reproduction of materials due to conservation and preservation concerns, and the right to charge additional fees as determined on a case by case basis. Licensee agrees that it has independently determined the “as is” file content, quality, and format of licensed content as displayed on this website to be suitable for its intended use, understands that files created with extensive restoration artwork and composite files being computer generated do not physically exist in a form that could be rescanned at higher resolution, and understands that requested reformatting will not result in a change in the actual file resolution. Deadbeats: Your reputation will suffer and you may become responsible for forcing us to discontinue offering these historic files if you become a deadbeat by failing to make prompt and full payment as required within ten days or if you attempt to repudiate this contract or your obligations hereunder, you consent to publication on this website and elsewhere of your identify as a deadbeat and associated information for failure to make timely payment, agree that your sole remedy for such publication if in error shall be removal of the error from our webserver following your delivery to us of proof of timely payment of the invoiced amount such as a cancelled check paid to the licensor, and you agree to pay liquidated damages in the amount of one thousand times the invoiced amount if you initiate or threaten us with legal action or threaten or attempt to damage our reputation in an effort to avoid paying, deter collection efforts, or prevent publication or continued publication of your lack of timely payment. Licensee acknowledges that 19th century files such as 3 1/2″ stereograph albumen prints are of limited resolution and are generally degraded, containing various imperfections of file and mount due to aging, and damaged, including but not limited to foxing, spotting, chipping, cracking, abrasion, folding, tearing, gouging, emulsion loss, soiling, staining, glue streaking, discoloration, motion blurring, darkening, and fading (often uneven in degree over various parts of an file), and acknowledges that files rescanned or photoduplicated from the original as a result of its request may require additional processing or restoration. If a requested file is of lesser quality than another similar available file, we may, in our sole discretion, substitute the better quality file. If a requested file is not available for the intended use, we may substitute a similar file that is available. Licensee acknowledges that nxmac.com recommends entirely digital color or duotone publication methods, and acknowledges that excessive magnification, extra processing steps including conversion to a different file format or conversion to monochrome rather than digital methods will not improve and may adversely affect file quality and/or resolution. Licensee shall utilize highest quality imaging and reproduction methods that do not degrade file quality, including but not limited to color, contrast, or resolution, and do not introduce artifacts, including but not limited to aliasing or Moir? patterns, and shall reproduce files at a sufficiently small size suitable for the available limited resolution so that reproduced files do not appear to be unsharp. Licensee acknowledges that higher resolution print publication requires files to be printed smaller than the size of the same file when displayed on a lower resolution computer screen. A license permitting publication is only a grant of access to the file(s) or other content(s) for publication use in consideration for a payment (“use fee”) actually received, and Licensee agrees that nxmac.com or other Licensor has no obligation to take any action on Licensee’s behalf to assist Licensee, nor to provide any product or service, that our responsibility ends once we have provided both permission and access to the requested file(s) or other content, and that all applicable fees or charges regardless of how described are use fees, not charges for products or services. Licensee shall be solely responsible for specifying and obtaining any needed services, and for any costs incurred on their behalf, whether by Licensor or third parties for photoduplication, restoration, processing, production, or otherwise and is encouraged to seek the services of expert service bureau, and/or printing companies for such services. All paragraphs and provisions of this User Agreement shall apply to this license agreement and to you as License. Important: Licensee shall take all steps necessary to assure that the terms and conditions of this User Agreement shall similarly apply to and bind any user of any work created by Licensee or under this license that includes or is derived from files or other content obtained from this website or under this User Agreement, which obligation in the case of such Internet use shall include but is not limited to placing a link to this User Agreement on each web page containing such work in addition to and accompanying the credit line specified below, and obtaining each such user’s agreement hereto. Licensee shall provide full and proper credit for the source of files or other content used, and state in an accompanying caption any modifications that have been made such as cropping, detailing, or tinting, other than restoration to original appearance.
Severe additional penalty for publication of files stolen from this website; unlimited liability for subsequent infringement: In the event that you do not obtain permission and instead violate this agreement by misappropriating and/or publishing unauthorized pirated copies of files obtained from this website, or by enabling, permitting, facilitating, or encouraging others to do so, a trespass, conversion, or the like, which harms the NXMac Site, for example by causing donors to be hesitant or unwilling to allow their files to be displayed on the Internet, or if you publish files or other content prior to making full payment of all applicable fees, or without including the legal notices and credits as required herein, you agree to pay a penalty to nxmac.com for each unlicensed use, in addition to any actual and/or statutory damages, expenses, and attorney’s fees, etc. which may apply, in the amount of fifty (50) times the undiscounted commercial fee for licensed use in accordance with this user agreement, agree to assign exclusively to nxmac.com copyright and all other ownership rights, including but not limited to physical, contractual, and intellectual property rights in any resulting work(s) which contain(s) or which is derived from our intellectual property, this website or its files or other content, and agree to immediately cease and desist any and all infringement of our copyright or other proprietary rights, and of such rights of any third party for which you shall also remain liable. Additionally, please take special care to understand that in addition to direct infringement by your theft and republication of our intellectual property, or if you otherwise violate the terms of this license, you agree that such violation shall result in your unlimited liability for all resulting use and/or infringement by third and subsequent parties who obtain our intellectual property from or through you, and you will be held fully responsible (including penalties) ? whether or not you have knowledge of their actions at the time, whether or not you benefit financially, and whether or not you have the right and/or ability to supervise or police such subsequent resulting uses ? especially should repeated and unstoppable use by others result, and you are specifically prohibited from taking any action that would permit, enable, or facilitate such unpermitted or viral distribution, including but not limited to, by others who are not a party to this agreement. [i.e., If you give away our files or other content without our permission and/or in violation of this agreement, you agree to pay as specified in this agreement for all resulting subsequent uses by others which are not authorized by us, whether lawful or unlawful, including those resulting uses which you and/or we may, as a result of your actions, then be powerless to control or prevent, and possibly may not even discover until after the fact.] Additionally, in the event that your actions in violation of this User Agreement result in our being deprived of our exclusive rights to ownership and control of the intellectual property we have created in this website and its digital files and/or other content in whole or substantial part, or of the value thereof, or which would make such intellectual property unsaleable, you agree to pay us liquidated damages in the amount of the greater of five million U.S. dollars, the amount of copyright infringement statutory damages per file or other content for each and every infringement, the appraised market value of this website absent such actions, and the estimated commercial cost to create a website of like complexity and content.
LEGAL NOTICE OF INFRINGEMENT
Please read this Legal Notice of Infringement which applies to you only if you have violated this User Agreement, or made any use of this website in any way not specifically authorized and permitted herein, in which case you acknowledge timely receipt hereof, which you agree is sufficient notice, at such time as you commenced violation of this User Agreement. Additionally, if you have received Legal Notice of Infringement from us via e-mail or otherwise, this Notice and the entire User Agreement is included therein by reference, and you should also reread this entire User Agreement. This Notice is authorized on behalf of nxmac.com, the owner of copyright and other proprietary rights to this website, its files, and other content. Your activities in violation of this User Agreement constitute infringement of the exclusive rights to make copies and to distribute copies and constitute an infringement of copyright and other intellectual property rights, as well as a violation of the User Agreement which is a binding contract entered into whenever use is made of our website. We request that you immediately take all action as may be appropriate to suspend these illegal activities. On behalf of the respective rights owners including but not limited to the owners of the exclusive rights to the copyrighted material at issue in this notice, nxmac.com hereby states that nxmac.com has a good faith belief that use of the material in the manner complained in violation of this User Agreement is not authorized by the copyright owners or other rights holders, their respective agents, or the law. nxmac.com hereby states, under penalty of perjury under the laws of California and under the laws of the United States, that the information in this notification is accurate, and under penalty of perjury, that nxmac.com is authorized to act on behalf of the owners of the exclusive rights which are being infringed as set out in this notification. Consequently, nxmac.com has never authorized the material to be disclosed or published by you or your user(s) and display of the material could result in being held liable for violating our proprietary rights. Your continued dissemination of this material is in violation of nxmac.com’s statutory, contractual, and other rights. Therefore, nxmac.com demands that you immediately erase or destroy all copies of and cease and desist from disseminating the material obtained in violation of this User Agreement, including but not limited to all locations where the information may be available from all computers, web sites, and servers under your or your company’s ownership or control. Please immediately remove the offending material, and notify us in writing that you have removed the material from your web site(s) or other unauthorized location. nxmac.com reserves its right to seek immediate equitable, injunctive, and other relief, including damages claims. This notice shall not be deemed to be a waiver of any rights or remedies, which are expressly reserved. We thank you for your courtesy and immediate cooperation in this matter.
NO WARRANTY – “AS IS” WITHOUT WARRANTY OF ANY KIND AS TO ACCURACY, COMPLETENESS, OR NON-INFRINGEMENT:
THERE IS NO WARRANTY FOR THIS WEBSITE OR ITS CONTENT OR LINKS, NOR FOR ANY FILES OR OTHER CONTENT OBTAINED THROUGH OR OTHERWISE IN CONNECTION WITH THIS WEBSITE. NXMac, NXMAC.COM, THE COPYRIGHT HOLDER(S), OTHER RIGHTS HOLDERS, LICENSOR, AND/OR OTHER PARTIES AND THEIR AFFILIATES, OR THE LIKE, THAT PROVIDE THIS WEBSITE AND ITS CONTENT, INCLUDING REPRODUCTIONS OF SELECTED ITEMS FROM COLLECTIONS AND LINKS DO SO “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS, WITHOUT USER SUPPORT OR WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, EXPECTATION OF PRIVACY, LACK OF VIRUSES, CORRUPTED FILES, OR OTHER MALICIOUS OR ERRONEOUS SOFTWARE, AVAILABILITY, RELIABILITY, QUALITY, ACCURACY, CORRECTNESS, COMPLETENESS, CORRECTNESS OF FILE IDENTIFICATION OR DESCRIPTION, COMPATABILITY, TIMELINESS, DECENCY, AND FREEDOM FROM INFRINGEMENT. ANY RESULTS OR OUTCOME AS A RESULT OF THE USE OF THIS INFORMATION AND THE ENTIRE RISK OF ACCESS TO OR USE OF THIS WEBSITE AND ITS CONTENT AND LINKS IS WITH YOU. SPECIFICATIONS AND EQUIPMENT ARE SUBJECT TO CHANGE WITHOUT ANY NOTICE OR OBLIGATION BY US. SHOULD THE WEBSITE OR ITS CONTENT, FILES, DOWNLOADS, OR LINKS, OR OUR COMMUNICATIONS OR ATTACHMENTS THERETO PROVE TO BE FAULTY, INACCURATE, INCORRECT, UNRELIABLE, NOT TO MEET ANY OF YOUR PARTICULAR REQUIREMENTS, OR TO BE OTHERWISE UNACCEPTABLE, YOU ASSUME THE COST OF ALL NECESSARY SUPPORT, REPAIR, OR CORRECTION. WE SHALL NOT BE LIABLE OR RESPONSIBLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF OUR CONTROL, INCLUDING BUT NOT LIMITED TO TECHNICAL MALFUNCTIONS OF ANY KIND, DELAYED OR FAILED ELECTRONIC COMMUNICATIONS, OR UNAVAILABLE OR FAILED NETWORK CONNECTIONS. NO WRITTEN INFORMATION OR ORAL ADVICE GIVEN BY US, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH ADVICE OR INFORMATION. YOU FURTHER ASSUME THE RISK THAT CERTAIN HISTORIC SUBJECTS, ACCIDENTS, ATTITUDES, AND STEREOTYPES AND DESCRIPTIONS OR DEPICTIONS THEREOF, SOME GRAPHIC, MAY PROVE TO BE DISTURBING AND THAT WARNINGS AND RATING FILTERS RELATING TO SUCH CONTENT MAY BE ABSENT OR INEFFECTIVE.
By using this website, you explicitly waive the rights granted under California Civil Code ?1542 (if applicable) which states that: “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” and (as applicable) you waive all such similar rights which may exist in other jurisdictions.
ACCESS TO OR USE OF THIS WEBSITE IN ANY JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
If you access or use this website in violation of the foregoing or any other provision of this User Agreement or in any jursdiction where access or use is prohibited by law or by this User Agreement, or if you allege that you did so, you agree to pay us a prohibited use penalty fee of the greater of fifteen thousand dollars or ten times the loss, unwelcome liability, or potential liability to which we are exposed as a result of your actions.
IF YOU USE THE INFORMATION, SERVICES, PERMISSIONS, OR PRODUCTS OF A THIRD PARTY OR THEIR WEBSITE LINKED TO OR OTHERWISE REFERRED TO ON OR THROUGH OUR WEBSITE, OR IN ANY COMMUNICATION FROM US, SUCH THIRD PARTY IS SOLELY RESPONSIBLE FOR ITS INFORMATION, SERVICES, PERMISSIONS, AND PRODUCTS, AND YOU RELEASE US FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES, ACTUAL AND CONSEQUENTIAL, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, DISCLOSED AND UNDISCLOSED, SUSPECTED AND UNSUSPECTED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH INFORMATION, SERVICES, OR PRODUCTS, ANY TRANSACTIONS BETWEEN YOU AND SUCH THIRD PARTY, AND ANY DISPUTES BETWEEN YOU AND SUCH THIRD PARTY.
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NXMAC.COM MAY PERIODICALLY MAKE UPDATES, CHANGES, IMPROVEMENTS, OR MODIFICATIONS, BUT MAKES NO COMMITMENT TO DO SO, AND MAY INTERRUPT OR DISCONTINUE OFFERING THIS WEBSITE IN WHOLE OR PART AT ANY TIME WITHOUT NOTICE. THE WEBSITE MAY ALSO BE TEMPORARILY UNAVAILABLE ON THE LAST DAY(S) OF ANY CALENDAR MONTH DURING WHICH OUR WEBSITE’S POPULARITY HAS EXCEEDED THE MONTHLY “BANDWIDTH” ALLOTMENT. YOU AGREE TO IMMEDIATELY NOTIFY NXMAC.COM BY E-MAIL OF ANY ERRORS, HISTORICAL INACCURACIES, TECHNICAL PROBLEMS, TYPOGRAPHICAL ERRORS, BROKEN LINKS, INCORRECT OR MISSING CITATIONS, PROPRIETARY CONTENT INCLUDED WITHOUT REQUIRED PERMISSION, OR ANY OTHER DEFECTS OR DEFICIENCIES WHICH YOU DISCOVER ON THIS WEBSITE, AND THE CORRECTION NEEDED, IF KNOWN TO YOU, ALTHOUGH WE MAKE NO PROMISE THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, AND OF ANY UNAUTHORIZED OR INFRINGING USE OF OUR NAME, FILES OR OTHER CONTENT OR PROPERTY THAT YOU DISCOVER ELSEWHERE.
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