Welcome to the BookBaby Digital Print Distribution Agreement ("Agreement") between you and BookBaby.
This Agreement contains the terms and conditions under which BookBaby offers the "Services" (as defined below). If you choose to utilize the "Literature Publishing Service". (as defined below) or the Consignment Service (as defined below) or both, the Agreement and/or Consignment Service Addendum will apply as applicable. Use of the Services, including through the submission of materials (and the print, text, associated artwork and underlying works embodied therein) for distribution by BookBaby (whether by upload to the BookBaby website (www.bookbaby.com) (the "Website") or through the submission of physical embodiments of your material (and the print, text, associated artwork and underlying works embodied therein) (e.g., as Books or print publications) to BookBaby, constitutes your agreement to and acceptance of this Agreement.
THIS AGREEMENT, WHEN ACCEPTED BY YOU AFTER YOU ENTER YOUR FULL LEGAL NAME AND CLICK "I AGREE" WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN AUTHOR, WRITER, PUBLISHER, OR CORPORATION, IN WHICH CASE "YOU" SHALL REFER TO THE AUTHOR, WRITER, PUBLISHER, OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE CLICKING "I AGREE." THE "EFFECTIVE DATE" OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE "I AGREE" BUTTON BELOW.
BookBaby (a division of Audio & Video Labs, Inc., along with our licensees and assignees collectively referred to in this Agreement as "us," "we," and "BookBaby") reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Site. In the event of substantive changes to the terms of this Agreement, You will be notified by email. If any modification is unacceptable to You, your only recourse is to discontinue use of the Literature Publishing Service. Your continued use of the Literature Publishing Service, following posting of a change notice or new agreement on the Site (as more fully described below in Paragraph 8), will constitute your binding acceptance of the changes.
We reserve the right to add, delete and/or modify any of the terms and conditions contained in this Agreement pursuant to the provisions of Section 10 below. Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and BookBaby that arose prior to the date of such modification. In the event of substantive changes to the terms of this Agreement, you will be notified by email. If any modification is unacceptable to you, your only recourse is to discontinue use of the Services. Your continued use of the Services following posting of a change notice or new agreement on the Site or notice to you via e-mail, will constitute your binding acceptance of the changes.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH BOOKBABY FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.
1. Terms of Service
This Agreement is incorporated into and subject to the Terms of Service (http://www.bookbaby.com/terms-of-service) ("TOS"). All initially-capitalized terms not defined in this Agreement are defined in the TOS.
You hereby appoint us as your authorized representative for the sale and other distribution of Your Authorized Content as described below. While distributing Your Authorized Content through BookBaby is non-exclusive, the rights granted by you to us under this Digital Print Distribution Agreement to distribute to any BookBaby digital partners and affiliates that you opt-in to as part of the BookBaby service are exclusive, because online retailers do not want to receive the same content delivered by multiple companies. Accordingly, you hereby grant to us the exclusive right with the digital partners and affiliates to which you opt in, and to our licensees (herein each a "Licensee") the non-exclusive right, during the Term and throughout the Territory, to:
(a) Reproduce, format, and convert Your Authorized Content into Digital Literature Products;
(b) Distribute and make available, for promotional purposes and without remuneration to You, portions of Your Authorized Content ("Samples") in any form of media, including but not limited to digital media, printed media and audio, and via a BookBaby Widget you or any person authorized by you may place on any website, to promote the license, sale and distribution of Digital Literature Products;
(c) Promote, sell, license, distribute, and deliver Digital Literature Products and associated metadata to purchasers and resellers who may use such Digital Literature Products in accordance with usage rules approved by us;
(d) Use and authorize others to license the use of and sale of Your Authorized Content in connection with all manner of e-Book and audiobook services, such as, but not limited to, sales or licenses of Digital Literature Products as digital files, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices);
(e) Make available and authorize Licensees (including, but not limited to, Apple iBookstore) to make available Your Authorized Content in all territories in which Licensees deliver, distribute, or sell digital literature including audioBooks or electronic Books.
(f) Use so-called "kiosks" to distribute, market and promote Digital Literature Products, including, without limitation, by allowing a copy of a Digital Literature Product to be transferred to personal devices;
(g) Use and authorize others to make non-permanent copies of Digital Literature Products to be distributed as so-called "conditional" downloads, whether tethered to a device, time-limited, use-limited or otherwise;
(h) Make available and authorize others to make available non-permanent copies of Digital Literature Products via a BookBaby Widget, and within physical brick-and-mortar stores owned or operated by BookBaby or its Licensees;
(i) Allow and authorize others to allow limited sharing of Digital Literature Product between existing and potential customers for promotional purposes;
(j) Use and distribute Copyright Management Information as embodied in Digital Literature Products;
(k) Display and electronically fulfill and deliver Authorized Artwork used in connection with Your Authorized Content for personal use, solely in conjunction with the applicable Digital Literature Product;
(l) Use Your Authorized Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(m) Authorize Licensees to remove or modify the cover artwork, metadata and product description you provide for your Digital Literature Products for any reason without notification.
(n) Make necessary changes to this agreement to comply with Licensees' rules and regulations not mentioned above; and
(o) Authorize our Licensees to perform any one or more of the activities specified above.
The term of this Agreement will commence on the Effective Date and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice (the "Term"), which notice, if sent by (a)BookBaby, may be sent to you at the last e-mail address you provided to BookBaby and (b) you to BookBaby, must be sent only to the following e-mail address: firstname.lastname@example.org with the following information: (a) your username; (b) the e‑mail address associated with your Account; and (c) all book titles for which you are requesting termination; and (d) whether you are terminating Literature Publishing Service, Consignment Service, or both. Any termination notice provided by you pursuant to this section shall be permanent and irreversible. Notwithstanding anything to the contrary herein, BookBaby may at any time in its sole discretion, with or without notice to you: (i) suspend or limit your access to or your use of the Services and/or (ii) suspend or limit your access to your Account (as defined in Section12(a)).
4. Payments to You
(a) Wholesale rates: For content resold through our distribution partner network Licensees (including iBookstore, Amazon, and other partners) we will pay you an amount equal to one-hundred percent (100%) of the net wholesale price that we receive from Licensees for the sale or other licensed uses of your Digital Literature Products ("License Fee") net of Sales Tax.
(b) In the event that we open a retail store at http://www.bookbaby.com, or for you at your request at your HostBaby-hosted website, for content sold at retail prices directly through our retail store we will pay you an amount equal to seventy-five percent (75%) of the retail price actually received from a customer for the sale or other licensed use of Your Authorized Content net of Sales Tax; provided, however, that in no event shall BookBaby retain less than 29 cents per digital distribution to cover credit card and other processing costs and you hereby authorize BookBaby's retention of such minimum amount. Retail sales fees owed to BookBaby by any entity with whom BookBaby has entered into a contractual relationship that are not received or collected (e.g., as a result of charge backs, breach of contract, failure to pay, etc.) are not included within the calculation set forth in this Section 4(b). License Fees and Retail Fees shall hereby be collectively referred to as the "Digital Literature Fee".
(c) To the extent that you owe any amounts to BookBaby as a consequence of this agreement, BookBaby shall have the right to deduct all or a portion of such amounts from any Digital Literature Fees otherwise then payable to you.
(d) In the event that BookBaby overpays royalties, such as in cases when fraudulent or unauthorized purchases are charged back to BookBaby after payments are made, then BookBaby will deduct the funds owed from monies payable to you hereunder. If the amount owed exceeds your accrued monies, you agree to remit a payment back to BookBaby within 20 days of notification to adjust the overpayment.
(e) In the event that BookBaby receives notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with your warranties and representations, or in the event that BookBaby has, in its reasonable business judgment, reason to suspect that your Account has been subjected to and/or involved in fraudulent activities, BookBaby reserves the right to discontinue posting of monies to your Account and block your ability to otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by BookBaby (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by BookBaby from any monies otherwise payable to you hereunder. Certain of BookBaby's licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
(f) In the event that BookBaby is presented with a claim of breach of copyright, failure to comply with any third party license requirement or other breach of any of your warranties hereunder, and in its reasonable business judgment is compelled to engage an attorney to respond to such claim, BookBaby shall - in its sole discretion - have the right to deduct from your Account or charge your credit card up to $300 to offset the costs of associated legal fees.
(g) All accounting details will be available and updated daily in the secure members' login area at https://www.bookbaby.com/Login. We will make payments to you (by wire or electronic transfer) when the amounts credited to you exceed the Threshold Amount (as defined below) set by you initially upon your registration with BookBaby, or as subsequently modified by you. Payments will occur within 7 business days from the date that your account balance exceeds the Threshold Amount. You may withdrawal funds by physical check for a charge of $1.50 USD per check withdrawal to cover processing fees. If a check is not redeemed after 180 days from the date it was issued, the funds (minus the fee) will be returned to your Account. Such payment will constitute full and adequate consideration for all rights granted, and all obligations undertaken, by you in this Agreement.
(h) We will maintain Books and records which report the sale or other licensed uses of your Digital Literature Products. You may, but not more than once a year, at your own expense, engage a Certified Public Accountant ("CPA") to examine those Books and records, as provided in this Section 4(a) and 4(b), only, but not if (s)he or his/her firm has begun an examination of our Books and records for anyone else, unless the examination has been concluded and any applicable audit issues have been resolved. Such Certified Public Accountant will act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination will not be knowingly released, divulged or published to any person, firm or corporation, other than to you or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Your CPA may make those examinations only for the purpose of verifying the accuracy of the statements sent to you. All such examinations will be in accordance with GAAP procedures and regulations. Your CPA may make such an examination for a particular statement only once, and only within one (1) year after the date we send you that statement. Your CPA may make such an examination only during our usual business hours, and at the place where we keep the Books and records to be examined. If you wish to make an examination, you will be required to notify us at least thirty (30) days before the date when you plan to begin it. We may postpone the commencement of your examination by notice given to you not later than five (5) days before the commencement date specified in your notice; if we do so, the running of the time within which the examination may be made will be suspended during the postponement. If your examination has not been completed within one (1) month from the time you begin it, we may require you to terminate it on seven (7) days' notice to you at any time; we will not be required to permit you to continue the examination after the end of that seven (7) day period. Your CPA will not be entitled to examine any other records that do not specifically report sales or other licensed uses of the Digital Literature Products. (i) If you have any objections to a statement, you will give us specific notice of that objection and your reasons for it within one (1) year after the date when we are required to send you that statement. Each statement will become conclusively binding on you at the end of that one (1) year period, and you will no longer have any right to make any other objections to it. You will not have the right to sue us in connection with any statement, or to sue us for Digital Literature Fees on sales and licenses during the period a statement covers, unless you commence the suit within that one (1) year period. If you commence suit on any controversy or claim concerning statements rendered to you under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to determination of the amount of the Digital Literature Fees due for the accounting periods concerned, and the court will have no authority to consider any other issues or award any relief except recovery of any Digital Literature Fees found owing. Your recovery of any such royalties will be the sole remedy available to you by reason of any claim related to our statements.
(i) Tax Information. BookBaby will use its reasonable efforts to collect sales and other taxes owed on the sale of Your Authorized Content ("Sales Tax"), and to remit such Sales Tax on your behalf to relevant government authorities. Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax owed in connection with the sale or distribution of Your Authorized Content pursuant to this Agreement, and you hereby indemnify BookBaby for any Sales Tax that may be owed in addition to those amounts collected and remitted on your behalf by BookBaby.
5. Your Obligations:
You or a licensee (on your behalf) will obtain and pay for any and all clearances or licenses required in the Territory (or any portion thereof) for the use of Your Authorized Content, and Authorized Artwork and metadata as intended by this Agreement. Specifically, and without limiting the generality of the foregoing, you or a licensee on your behalf will be responsible for and shall pay (i) any royalties and other sums due to writers, authors, co-authors, artists, copyright owners and co-owners, publishers and any other publishing royalty participants from sales or other uses of Digital Literature Products, (ii) all payments that may be required under any collective bargaining agreements applicable to you or any third party, and (iii) any other royalties, fees and/or sums payable with respect to Your Authorized Content, and Authorized Artwork, metadata or other materials provided by you to us.
6. Payments to BookBaby:
In consideration of the Services rendered hereunder, you shall pay to BookBaby the fees described on the attached Fee Schedule, which may be amended from time to time by BookBaby without notice to you. All Digital Literature Products delivered by BookBaby requires that you purchase an annual fee-based subscription, and your continued use of the Literature Publishing Service is contingent upon your timely payment of the subscription fees. You are expressly agreeing that we are authorized to deduct your annual subscription fees, any applicable tax and other charges you may incur in connection with your use of BookBaby's Services directly from your BookBaby Account (monies which include your Digital Literature Fees) or charge such fees to any alternate payment method (such as a valid PayPal account, credit card or debit card) you provided. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your BookBaby Account by you or anyone else using your Account. If you notify BookBaby in writing that you are canceling your annual subscription for one or more of your Digital Literature Products, no further annual fees will be charged to your BookBaby Account or alternate payment method for those Digital Literature Products. All cancelled Digital Literature Products will be removed from the applicable Licensee. You will not be entitled to reimbursement of any applicable pre-paid fees with respect to any cancelled Digital Literature Products. It is your responsibility to notify Company if your payment method has changed by making the appropriate changes to your BookBaby Account settings. If you do not provide a valid payment method your Services may be disconnected or interrupted. For a listing of BookBaby's current fees and charges, click here: https://www.bookbaby.com/pricing
7. Right to Withdraw Material:
You have the right, at any time during the Term, to withdraw your permission for the sale or other uses of Your Authorized Content and Authorized Artwork, upon written notice to us ("Withdrawal"). Within 5 business days following our receipt of your notice of Withdrawal, we will advise our Licensees that they are no longer authorized to offer the sale or other use of Your Authorized Content or Authorized Artwork. Sending of your notice of Withdrawal will not limit your responsibility for sales and other uses of Your Authorized Content and/or Authorized Artwork that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired Your Authorized Content or Authorized Artwork. BookBaby is not responsible for, and has no liability for, any delays of our Licensees in removing Your Authorized Content and Authorized Artwork.
8. Names and Likenesses; Promotional Use and Opportunities:
(a) Names and Likenesses. You hereby grant to us, during the Term, the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning any writers, authors, artists, or publishers, as well as Book or publication name, and Authorized Artwork, in any marketing materials for the sale, promotion and advertising of the applicable Digital Literature Product, which is offered for sale or other use under the terms of this Agreement (e.g., an author, writer, publisher, or artist name and likeness may be used in an informational fashion, such as by textual displays or other informational passages, to identify and represent authorship and publishing credits of the applicable author, writer, or artist in connection with the exploitation of applicable Digital Literature Product).
(b) Promotion. You hereby grant to us and our Licensees the right to market, promote and advertise the Digital Literature Products as available for purchase or license, as we and they determine in our and their discretion.
Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, all right, title and interest in and to (i) Your Authorized Content and Authorized Artwork, (ii) the Digital Literature Products, (iii) the Samples, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you, will be yours.
10. Modification, Termination and Effect of Termination:
(a) We reserve the right to change, modify, add to, or remove all or part of this Agreement, in our sole discretion. Notice of any such change will be sent to you by email at least fifteen (15) days prior to its effective date. In the event that you do not consent to any such proposed changes, your sole recourse shall be to terminate the Term of this Agreement, by notice to us as provided above, and your failure to do so within fifteen (15) days of the date of any such email from us to you shall constitute your acceptance of such changes. To terminate your Agreement, you must send a notice of Termination to email@example.com and include in the subject line of your e-mail "Termination of Digital Print Distribution Agreement."
(b) In the event that you shall materially breach this Agreement, including by any failure to pay any amounts owed to BookBaby as a consequence of this agreement, including but not limited to Subscription Fees, then, in any such event, BookBaby shall have the right upon notice in writing to You to terminate the Term hereof with immediate effect. No election by BookBaby to waive its right of termination in any particular instance, shall constitute a waiver of BookBaby's rights to do so in any other instance.
(c) The expiration or termination of the Term will not relieve either you or us from our respective obligations incurred prior to or during the Term. Accordingly, applicable provisions of this Agreement will continue to apply even after the expiration of the Term.
11. Monitoring of Your Content; Removal of Content from Website:
(a) Monitoring. BookBaby does not control Your Authorized Content and does not have any obligation to monitor Your Authorized Content for any purpose. BookBaby may choose, in its sole discretion, to monitor, review or otherwise access some or all of Your Authorized Content, but by doing so BookBaby assumes no responsibility for Your Authorized Content, no obligation to modify or remove any inappropriate elements of Your Authorized Content, or to monitor, review or otherwise access any other author's content or artwork.
(b) Right of Removal. BookBaby reserves the right, in its sole and absolute discretion, to remove any of Your Authorized Content from the Website if such content: (i) is patently offensive, pornographic or defamatory; (ii) is the subject of a dispute between you or us and a third party; (iii) is content to which you cannot document your rights therein upon BookBaby's request; (iv) violates the intellectual property rights or other protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in BookBaby's sole and absolute judgment is necessary to protect the business interests of BookBaby and any of its business partners or Licensees. Our partners, retailers and Licensees may reject content for any reason (including but not limited to racist or sexual content, hyperlinks, SEO spam, Public Domain material or infringing/offensive/prohibited images or content). BookBaby's service has been rendered once we have formatted and delivered the content, and if your content is rejected by any partner for any reason, BookBaby will have no liability to you, and BookBaby will not offer any refund or credit for any services (including but not limited to conversion, formatting, cover design, and distribution). BookBaby may also remove Your Authorized Content from the Website if you are abusive or rude or provide false or intentionally misleading information to any BookBaby employees or agents. BookBaby shall have no liability to you for the removal of any of Your Authorized Content from the Website or any Licensee website or service. The removal of any of Your Authorized Content shall not relieve BookBaby of the obligation to pay you any royalties that may have accrued prior to the removal of Your Authorized Content.
(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by BookBaby's removal of Your Authorized Content from the Website or Licensee's websites or services. In order for you to terminate this Agreement following the removal of any of Your Authorized Content, you must send BookBaby a notice of Termination.
12. Account Information; Disclosures:
(a) Your Account Information. In order to access some features of the Website, including your account information and periodic statements, you will have to create an online account ("Account"). You hereby represent and warrant that the information you provide to BookBaby upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up‑to-date at all times during the Term of this Agreement.
(b) Password. As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify BookBaby by e-mail to firstname.lastname@example.org. You will be solely responsible for the losses incurred by BookBaby and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying BookBaby that your Account has been compromised.
(c) Disclosure of Information. You acknowledge, consent, and agree that BookBaby may access, preserve, and disclose your Account information and Your Authorized Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to a claim that any of Your Authorized Content violates the rights of third parties; (iv) to respond to your requests for customer service; or (v) to protect the rights, business interests, property or personal safety of BookBaby and its employees and users, and the public.
13. Prohibited Use of the Website and Licensee Websites and Services:
(a) You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage BookBaby, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or Your Authorized Content, do or attempt any of the following:
(b) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended;
(c) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload Your Authorized Content to the Website;
(d) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;
(e) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties;
(f) Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortuous, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
(g) Create a false identity or impersonate another for the purpose of misleading others as to your identify, including, but not limited to, providing misleading information to any feedback system employed by BookBaby;
(h) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;
(i) Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;
(j) Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in Your Authorized Content; or
(k) Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
14. Availability of Services:
BookBaby may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and BookBaby makes no commitment to update any aspect of the Website. BookBaby makes no representations and warranties with respect to availability of the Website and may discontinue the Services at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of Your Authorized Content uploaded to the Website or otherwise delivered to BookBaby as Physical Product (as defined below).
15. Additional Representations and Warranties of the Parties:
(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:
(i) is authorized to enter into this Agreement on the terms and conditions set forth herein.
(ii) will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.
(iii) shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
(b) Representations and Warranties by You. You represent and warrant to BookBaby that:
(i) You represent and warrant that you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to Your Authorized Content or Authorized Artwork, and metadata. For the avoidance of doubt, if you are acting on behalf of an author, writer, publisher, or corporation, you hereby represent and warrant to BookBaby that you are fully authorized to enter into this Agreement on behalf of such author, writer, publisher, or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.
(ii) You represent and warrant that you own or control the necessary rights in order to make the grant of rights, licenses and permissions herein, that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Your Authorized Content, and to use such individual's identifying or personal information (to the extent such information is used or contained in Your Authorized Content) as contemplated by this Agreement. Furthermore, you represent that the exercise of such rights, licenses and permissions by us and our Licensees shall not violate or infringe the rights of any third party.
(iii) You represent and warrant that Your Authorized Content does not plagiarize or pirate any other work or infringe upon any copyright, trademark or other proprietary right.
(iv) You represent and warrant that Your Authorized Content does not contain SEO keyword spam, either in your manuscript or your metadata tags.
(v) You represent and warrant that Your Authorized Content does not contain multiple hyperlinks to advertisements or affiliate marketing pages.
(vi) You represent and warrant that Your Authorized Content does not contain any advertisements of content that is primarily intended to advertise or promote products of services.
(vii) You represent and warrant that Your Authorized Content does not violate any right of privacy that is libelous or violate any personal right or other right of any kind of any person or entity.
(viii) You represent and warrant that Your Authorized Content does not violate state and federal laws or advocate illegal activities.
(ix) You represent and warrant that Your Authorized Content does not advocate hateful, discriminatory or racist views or actions toward others.
(x) You represent and warrant that any and all instruction, material, or advice contained in Your Authorized Content is not likely to result in injury and Your Authorized Content includes appropriate warning and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice.
(xi) You represent and warrant that Your Authorized Content is not a public domain work (unless you are the true author) and is not sourced or copied, either in part or in entirety, from commercial services, articles, or information sources which have been licensed to others.
(xii) You and we represent and warrant that we will not act in any manner which conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by you or us will interfere with our performance of our obligations under this Agreement.
(xiii) Each party represents and warrants that it shall perform its obligations hereunder in full compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.
(xiv) We make no guarantees whatsoever about there being any minimum sales or uses of any Digital Literature Products.
16. No Representations and Warranties With Respect to Sales and Distributions:
BookBaby makes no guarantees regarding the minimum number of unit sales or uses of Your Authorized Content. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with BookBaby for the sale, distribution or licensed use of Your Authorized Content, including by paying the royalties they owe us for the distribution of Your Authorized Content. If a Licensee refuses to pay us for the use of Your Authorized Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sale, distribution or licensed use of Your Authorized Content if such third party fails or refuses to pay such amounts to BookBaby upon BookBaby's request.
(a) Indemnification. You hereby indemnify, save, and hold us harmless from any and all damages, claims, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys' fees) (collectively, "Claims") arising out of or connected with any claim, demand, or action which is inconsistent with any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding copyrights or any other rights in and to any other forms of intellectual property. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Pending the determination of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this paragraph.
(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by BookBaby or imposes any conditions or obligations on BookBaby other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe BookBaby an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
(a) THE WEBSITE AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN "AS IS," "AS AVAILABLE," "WITH ALL FAULTS" BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOOKBABY AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BOOKBABY OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. BOOKBABY AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY BOOKBABY, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER YOUR AUTHORIZED CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
19. Limitation of Liability; Basis of the Bargain:
(a) BOOKBABY SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. BOOKBABY SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY BOOKBABY OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF YOUR AUTHORIZED CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH BOOKBABY OR OTHERWISE. BOOKBABY'S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY BOOKBABY FOR THE DISTRIBUTION OR LICENSING OF YOUR AUTHORIZED CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST BOOKBABY.
(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BOOKBABY, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND BOOKBABY, BOOKBABY'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT BOOKBABY WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
20. General Provisions:
(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture, and neither party is the other's agent, partner, or employee.
(b) Entire Agreement. This Agreement together with the TOS contains the entire understanding of the parties relating to the subject matter hereof. This Agreement supersedes all previous agreements or arrangements between us pertaining to the digital distribution of content, provided that if you previously entered into a digital distribution agreement with us in the past, and elected any options, those options will remain in place under this Agreement. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
(c) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
(d) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by you upon registration with the BookBaby Site, or as properly updated.
(e) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of California applicable to agreements entered into and to be wholly performed in California, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the TOS.
(f) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
(g) Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(i) Assignment. BookBaby may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining BookBaby's prior written consent.
21. Certain Definitions:
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) "Authorized Artwork" means any artwork relating to Your Authorized Content that you provide to us. All such artwork will be deemed to have been properly cleared and/or licensed by you for all purposes, unless you provide us with written notice to the contrary.
(b) "Authorized Territory" means the Universe, or more limited territories, if you so choose, in the registration process.
(c) "BookBaby Widget" means a software application available on the Website that you may embed on third-party websites to facilitate the distribution, communication to the public or other transmission of Your Authorized Content via the Internet through such third-party websites.
(d) "Copyright Management Information" means the digital information conveying information regarding Digital Literature Products, such as your name, the title of the applicable published work and the publishing BookBaby name.
(e) "Digital Literature Product" means a copy or copies of Your Authorized Content in digital and electronic form.
(f) "Licensee" means any third party licensee, by way of example, Apple iBookstore, Amazon, or others that we may authorize to carry out the marketing, distribution and sale or other use of Your Authorized Content and Authorized Artwork pursuant to the terms of this Agreement.
(g) "Literature Publishing Service" means the online services operated by BookBaby for the sale, distribution or licensing of Your Authorized Content and other content through the Website or through websites and services operated by or on behalf of Licensees.
(h) "Physical Product" means Your Authorized Content as fixed in physical product such as books, magazines, periodicals, etc.
(i) "Services" means either or both of the Literature Publishing Service and and the Consignment Service.
(j) "Subscription Fee" means the amount payable by You to BookBaby on an annual basis for each Digital Literature Product that is included in the Literature Publishing Service.
(k) "Threshold Amount" means the dollar amount set by you initially upon your registration with BookBaby, or as subsequently modified by you, which amount shall in no event be less than $10.
(l) "Your Authorized Content" means print, text, associated artwork and underlying works that you have designated for digital distribution by us. Any such print, text, associated artwork and underlying works must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you.
22. If User is a United States Federal Government Agency, this Amendment applies to this Agreement:
You, as a U.S. Government entity, are required when entering into agreements with other parties to follow applicable federal laws and regulations, including those related to ethics; privacy and security; accessibility; federal records; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum. Company and Agency (together, the "Parties") agree to modify the Company's standard Terms of Service, available at http://www.bookbaby.com/terms-of-service (the "TOS") to accommodate Agency's legal status, its public (in contrast to private) mission, and other special circumstances. Accordingly, the TOS are hereby modified by this Amendment as they pertain to Agency's use of the Company Site and Services.
(a) Government entity: "You" within the TOS shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Company Site or Services on Agency's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Company will look solely to Agency to enforce any violation or breach of the TOS by such individuals, subject to federal law.
(b) Public purpose: Agency shall use the Company Site and Services solely in furtherance of Agency's public purpose.
(c) Advertisements: Company agrees not to serve or display any commercial advertisements or solicitations on any portion of Agency content or materials uploaded by or under the control of the Agency.
(d) Indemnification, Liability, Statute of Limitations: Any provisions in the TOS related to indemnification and filing deadlines are hereby waived, and shall not apply except to the extent expressly authorized by law. Liability for any breach of the TOS as modified by this Amendment, or any claim arising from the TOS as modified by this Amendment, shall be determined under the Federal Tort Claims Act, or other governing federal authority. Federal Statute of Limitations provisions shall apply to any breach or claim.
(e) Governing law: Any arbitration, mediation or similar dispute resolution provision in the TOS is hereby deleted. The TOS and this Amendment shall be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws. To the extent permitted by federal law, the laws of the State of California (excluding California’s choice of law rules) will apply in the absence of applicable federal law.
(f) Changes to standard TOS: Company has the right to change the TOS with 15 days advance notice. Company shall send this notice to the email address You designate at the time You sign up for service, and You shall notify Company of any change in the notification email address during the life of the Amendment.
(g) Access and use: Company acknowledges that the Agency's use of Company's Site and Services may energize significant citizen engagement and otherwise become important to the Agency's mission. Before removing Agency content and/or terminating Agency’s account, Company will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part.
(h) Modifications of Agency content: Any right Company reserves in the TOS to modify or adapt Agency materials is limited to technical actions necessary to index, format and display that content. The right to modify or adapt does not include the right to substantively edit or otherwise alter the meaning of the content. In the event Agency discovers that Agency content has been modified in a manner that alters the meaning of such content, Agency may contact Company and the Parties shall work together in good faith to resolve the matter. Notwithstanding the foregoing, nothing in this Amendment shall result in an expansion of Agency's rights as a United States Government entity under the Copyright Act of 1976 (17 U.S.C. §§101 et sec.), specifically including Section 105 of the Act.
(i) Limitation of liability: The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the TOS in any way grants Company a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
(j) No endorsement: Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You use its Services, shall not be used by Company in such a manner as to state or imply that Company's products or services are endorsed, sponsored or recommended by You or by any other element of the Federal Government, or are considered by You or the Federal Government to be superior to any other products or services. Company agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Company's homepage or elsewhere on the Company Site unless it is related to the sale, promotion and advertising of the applicable Digital Literature Product or permission to do has been granted by the Agency or by other relevant federal government authority. Company may list the Agency's name in a publicly available customer list on its homepage or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
(k) Fee based Services: The Parties understand that fee-based products and Services are subject to federal procurement rules and processes. Before an Agency decides to enter into a Subscription, or any other fee-based service that this Company or alternative providers may offer now or in the future, Agency agrees to determine if it has a need for the Subscription and Services for a fee, to consider the Subscription and Services’ value in comparison with comparable Subscriptions and Services available elsewhere, to determine that Agency funds are available for payment, to properly use the Government Purchase Card if that Card is used as the payment method, to review any then-applicable TOS for conformance to federal procurement law, and in all other respects to follow applicable federal acquisition laws, regulations, and agency guidelines when initiating that separate action. Agency retains the right to refunds of payments on any unused pre-purchased Company products and Services. Company agrees to refund any payment made by Agency for any unused pre-purchased Company products or Services. Agency will notify the Company in writing of all refund claims, and the Company will process any refund within 15 business days of receiving each request.
(l) Termination rights: Termination of this Agreement shall be in accordance with the Federal Acquisition Regulation and other applicable federal law.
(m) Security: Company will, in good faith, exercise due diligence using generally accepted commercial business practices for IT security, to ensure that systems are operated and maintained in a secure manner, and that management, operational and technical controls are employed to ensure security of systems and data. An SAS 70 Type II audit certification will be conducted annually, and Company agrees to provide Agency with the current SAS 70 Type II audit certification upon the agency's request. Recognizing the changing nature of the Web, Company will continuously work with users to ensure that its Site and Services meet users' requirements for the security of systems and data. Company agrees to discuss implementing additional security controls as deemed necessary by Agency to conform to the Federal Information Security Management Act (FISMA), 44 U.S.C. 3541 et seq.
(n) Federal Records: Agency acknowledges that use of Company's Site and Services may require management of Federal records. Agency and user-generated content may meet the definition of Federal records as determined by the agency. If the Company holds Federal records, the Agency and the Company must manage Federal records in accordance with all applicable records management laws and regulations, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), and regulations of the National Archives and Records Administration (NARA) at 36 CFR Chapter XII Subchapter B). Managing the records includes, but is not limited to, secure storage, retrievability, and proper disposition of all Federal records including transfer of permanently valuable records to NARA in a format and manner acceptable to NARA at the time of transfer. The Agency is responsible for ensuring that the Company is compliant with applicable records management laws and regulations through the life and termination of its use of the Site and Services.
(o) Precedence; Further Amendments: If there is any conflict between this Amendment and the TOS, or between this Amendment and other terms, rules or policies on the Company Site or related to its Services, this Amendment shall prevail. This Amendment constitutes an amendment to the TOS; any language in the TOS indicating it may not be modified or that it alone is the entire agreement between the Parties is waived. Any further amendment must be agreed to by both Parties.
(p) Additional Items for discussion and possible inclusion in this Amendment: Company understands current federal law, regulation and policy may affect Agency's use of the Company's products and Services in ways not addressed in the list of clauses above. Among the topics Agency may need to discuss with Company, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are Privacy and Accessibility.