This document constitutes the BookBaby Digital and Print Distribution Agreement ("Agreement") between you and BookBaby (a division of DIY Media Group, Inc.), referred to in this Agreement as "us," "we," and "BookBaby").
This Agreement contains the terms and conditions under which BookBaby offers and provides certain book publishing, distribution, printing, promotional and other services (the "Services") through the BookBaby website (www.bookbaby.com) (the "Website") or through other websites and services operated by or on behalf of BookBaby and its Licensees (as defined below). By indicating acceptance of this Agreement or by using or accessing 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 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, you agree to be bound by the terms and conditions described herein and all terms incorporated by reference.
THIS AGREEMENT CREATES 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 USING THE SERVICES OR OTHERWISE ACCEPTING THIS AGREEMENT.
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 material changes to the terms of this Agreement, we will send you notice by email or by such other means we deem appropriate at our sole discretion. If any modification is unacceptable to you, your only recourse is to terminate your account and discontinue use of the Services. To terminate your distribution Agreement, you must log into your BookBaby account and choose to cancel distribution under all applicable partners under My Books > View Status. Your continued use of the Services, following posting of a change notice or new agreement on the Site or otherwise sending you a notice, or your failure to submit a Termination Notice within fifteen (15) days of the date we provide such notice, will constitute your binding acceptance of the changes.
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.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID EMAIL ADDRESS ON FILE WITH BOOKBABY FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.
1. Certain Definitions:
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) "Author Content" means the manuscripts, artwork, images, text, descriptive materials and other content that you have submitted to us in connection with the Services. Any Author Content you submit 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.
(b) "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 the Author Content via the Internet through such third-party websites.
(c) "Books" means any form of book embodying the Author Content, including print books, audio books, ebooks and other digital and physical formats of any kind.
(d) "Classic Users" means users who signed up for either our “Free” or “Standard” package between the dates of 12/10/13 and 12/9/14.
(e) "Copyright Management Information" means the digital information conveying information regarding Digital Books, such as your name, the title of the applicable published work and the published BookBaby name.
(f) "Licensee" means any third party licensee, such as Apple Books, Amazon, or others, that we may authorize or sublicense to carry out the marketing, distribution, printing and sale or other use or exploitation of the Author Content pursuant to the terms of this Agreement.
(g) "Territory" means throughout the universe, or such more limited territories to which you specifically limit the territory in the registration process.
You hereby appoint us as your exclusive authorized representative for the sale and other distribution of the Author Content as described in this Agreement. Although you retain the right to sell the Author Content directly, you may not appoint any third parties to: (a) act as your authorized representative for distributing the Author Content to third party distributors, whether for online or physical redistribution (because online retailers such as Apple Books, Barnes & Noble, etc. will refuse content that may be delivered by multiple parties); or (b) distribute, publish or otherwise exploit the Author Content in any manner, including via ebooks and online or physical distribution.
You hereby grant to us the exclusive (except for direct sales by you as set forth in this Agreement), sublicensable, right and license to reproduce, distribute, publish, publicly perform, publicly display, and otherwise use and exploit the Author Content as necessary to carry out the Services you select during the Term and throughout the Territory, including the right to:
(a) Reproduce, format, reformat, digitize, and convert the Author Content into Books in any form or format;
(b) Distribute, publicly perform, publicly display and otherwise make available, for promotional purposes and without remuneration to you, portions of the Author 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 Books;
(c) Promote, sell, sublicense, distribute, and deliver the Books and associated metadata to purchasers and resellers who may use such Books and associated metadata in accordance with usage rules approved by us and pursuant to any limitations imposed by the distribution preferences you designate in your account (e.g., only sales of permanent digital or physical files);
(d) Use and authorize others to license the use of and sale of the Author Content in connection with all manner of book services, such as, but not limited to, sales or licenses of Books as permanent digital files, digital files made available via subscription services, digital files made available via library services, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices), and re-installs to customers who have previously purchased a specific Book;
(e) Make available and authorize Licensees to make available the Books and related Author Content in all territories in which Licensees deliver, distribute, or sell books in any form or format, including audio books and e-books;
(f) Print, distribute, and sell, and authorize Licensees to print, distribute, and sell, the Books in any manner authorized in connection with the Services, including directly to you, through our Website, through kiosks, through distributors and retailers, through third-party and specialized websites and online stores, through your Bookshop page, and through other sales channels as determined by us;
(g) Allow and authorize others to allow limited sharing of Books between existing and potential customers for promotional purposes;
(h) Use and distribute Copyright Management Information as embodied in Books;
(i) Display and electronically fulfill and deliver Authorized Artwork used in connection with the Author Content for personal use, solely in conjunction with the applicable Books;
(j) Use the Authorized Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(k) Authorize Licensees to remove or modify the cover artwork, metadata and product description you provide for your Books for any reason without notification.
(l)Make necessary changes to this Agreement to comply with Licensees' rules and regulations not mentioned above;
(m) Authorize our Licensees to perform any one or more of the activities specified above; and
(n) Allow our third party partners to create derivative works of the Authorized Content in the form of narrated audiobooks (digital audio files) using artificial intelligence (AI) technology, subject to the following conditions:
- (i) We will issue up to three proofs of any such audiobooks to you for review and approval prior to the sale of any such audiobooks.
- (ii) No editorial changes are permitted during the creation and proofing process.
Other than your right to make direct sales of the Author Content to end users and consumer, the rights granted under this Agreement are exclusive.
4. Term and Termination:
The term of this Agreement will commence when you first access or use the Services or otherwise accept this Agreement 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 email address: [email protected] with the following information: (i) your username; (ii) the email address associated with your Account; and (iii) "Termination of Digital and Print Distribution Agreement" in the subject line of the email. You may also request removal from your account any specific Book titles previously submitted under this Agreement by sending an email requesting such removal to [email protected] with your username, the email address associated with your Account, and the book title(s) for which you are requesting removal. Once you make your request to have a Book title removed, our team will begin working to remove the title, but note that it may take 4-6 weeks or longer for the titles to be removed from retail outlets around the world. Until we are able to remove such title, the rights and licenses granted under this Agreement will continue to apply to such title. Sections 1, 2, 5, 7, 11, 12, 13,14, 15, 16, 17, 18, 19, 20, 21, and 22 will survive any termination of this Agreement for any reason.
5. Payments to You
(a) E-Books and Online Distribution
(i) Wholesale rate: For Books distributed online through our third-party distribution partner network Licensees (including Apple Books, Amazon, and other partners) we will remit to you the following:
(A) For all users except for Classic Users: We will remit to you an amount equal to one-hundred percent (100%) of the net wholesale price that we actually receive from such Licensees (after such Licensees have deducted their fees and any other applicable third party fees and costs) for the sale or other licensed uses of your Books (the "Wholesale License Fee"), less any Sales Tax (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(B) For Classic Users (as defined in Section 1): We will remit to you an amount equal to eighty-five percent (85%) of the Wholesale License Fee actually received, less any Sales Tax (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(ii) Bookshop Sales: In the event that authors elect to activate their Bookshop page, a free eCommerce web page, we will remit to you the following:
(A) For e-books, an amount equal to eighty-five percent (85%) of the retail price actually received from a customer for the sale or other licensed use of the Books through the Bookshop (the "Retail License Fees") net of any Sales Taxes (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(B) For narrated audiobooks created as described in Section 3(n), a Retail License Fee equal to seventy-five percent (75%) of the retail price actually received from a customer, net of any Sales Taxes (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction.
(iii) The Wholesale License Fees and the Retail License Fees shall hereby be collectively referred to as the "Digital License Fee". Digital License Fees owed to BookBaby by any person or 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 6(a).
(A) Payments of the Digital License Fee, or portions thereof, under this Agreement, may be considered royalties and subject to tax withholding of up to thirty percent (30%) of payment amounts owed to you. BookBaby may be required to report such payments to the Internal Revenue Service. You are required under this Agreement to ensure that BookBaby has valid, current tax identification numbers and tax withholding certificates in order to avoid BookBaby withholding any such amounts due to any applicable tax authority.
(b) Print On Demand Sales: For Books sold through our Print On Demand Services, we will (i) collect the amounts received for such sales, including amounts paid by third-party distributors, (ii) deduct all costs and pass through amounts relating to such sales, including all printing, binding, manufacturing, packaging, shipping, selling and distributions fees, and Sales Taxes, and (iii) remit to you the quoted amount per unit sale at time of signup. The actual amount you receive will depending on a variety of factors, such as international currency conversion rates, the manufacturing costs associated with production of your Books, and the fluctuation in third party distribution and other fees.
(c) To the extent that you owe any amounts to BookBaby as a consequence of this agreement, including any amounts owed under Section 8 below, BookBaby shall have the right to deduct all or a portion of such amounts from any amounts otherwise then payable to you.
(d) In the event that BookBaby overpays any remittance to you, 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 there from, 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 and in addition to any other remedies available - have the right to deduct from your Account or charge your credit card up to $300 to partially offset the costs of associated legal fees.
(g) To the fullest extent permitted by law, BookBaby and its Licensees reserve the rights to determine the applicable sales price and other fees payable in connection with the Books.
(h) 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. "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. Payments will occur within 7 business days from the date that your account balance exceeds the Threshold Amount. We may also elect, at our sole option to make payments to you at such other times as we deem appropriate, even if you have not met 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. The payments made under this Agreement will constitute full and adequate consideration for all rights granted, and all obligations undertaken, by you in this Agreement.
(i) We will maintain Books and records which report the sale or other licensed uses of your Books. 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 6(a) and 6(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 Books. (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 your share of Digital License 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 License Fees due to you 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 License 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.
(j) Tax Information. BookBaby will use its reasonable efforts to collect sales and other taxes owed on the sale of the Author Content ("Sales Tax"), and to remit such Sales Tax or other similar taxes including VAT (Value Added Tax) in relevant taxing jurisdictions, on your behalf to relevant government authorities. This may include withholding according to Section 5(a)(iii). Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax and other similar taxes owed in connection with the sale or distribution of the Author Content pursuant to this Agreement, and you hereby indemnify BookBaby for any Sales Tax and other similar taxes that may be owed in addition to those amounts collected and remitted on your behalf by BookBaby.
(k) Coupons, Discounts, Promotions and Awards. Coupons, discounts, promotions and contest awards are non-transferable and expire 120 days after award (offer) date, unless an extended expiration is explicitly stated on the award. Coupons, discounts promotions and contest awards are not redeemable for cash, may not be replaced if lost or stolen and may not be used in conjunction with any other offer.
6. Your Obligations Regarding Rights in Author Content:
Any Author Content you submit must be owned or controlled by you or you must have sufficient rights therein to submit the Author Content and grant the rights granted under this Agreement with respect to such Author Content, such that your submission and our exercise of the rights granted under this Agreement will not infringe upon or violate the rights or any third party. 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 the Author Content and any related 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, distribution or other uses or exploitation of the Books, (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 the Author Content, metadata or other materials provided by you to us.
7. BookBaby Content Policy:
BookBaby reserves the right to refuse or remove any order in its sole and absolute discretion, for any reason or for no reason, including if BookBaby believes such content is hate speech, offensive, exploitative, abusive, pornographic, defamatory, inflammatory, false, fraudulent, unlawful or glorifies or promotes unlawful acts, or is otherwise objectionable.
Notwithstanding the above, BookBaby believes in the client’s right to create content the way it is intended to be consumed. As such, we will manufacture, sell, distribute, and/or promote content that contains profanity or explicit language, so long as it does not violate the Content Policy in the previous paragraph.
8. Payments to BookBaby:
In consideration of the Services rendered hereunder, you shall pay to BookBaby the fees in effect at the time you request the particular Services , as set forth on the Website, in this Agreement, or as otherwise made available to you (the “BookBaby Fees”). The BookBaby Fees may be amended from time to time by BookBaby in its sole discretion. If any amended BookBaby Fees apply to you, BookBaby will provide you notice of such amended BookBaby Fees at least fifteen (15) days prior to the effective date of the amendment. Your continued use of the Services after such effective date constitutes your agreement to the amended BookBaby Fees. If you do not agree to such amended BookBaby Fees, your sole option is to terminate this Agreement in accordance with the termination procedures set forth in Section 5 above. The amended BookBaby Fees will apply to all Services rendered after the effective date of such amendments. 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. 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
9. 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 specified Book titles in your account, upon written notice to us ("Withdrawal"). Within 5 business days following our receipt of your notice of Withdrawal, we will use reasonable efforts to advise our Licensees that they are no longer authorized to offer the sale or other use of (the “Withdrawn Titles”). Please note, however, that it may take 4-6 weeks or longer for the titles to be removed from certain Licensees, especially foreign retailers, and that the rights and licenses granted under this Agreement will continue to apply to such title until we are able to remove such title. Sending of your notice of Withdrawal will not limit your responsibility for sales and other uses of the Author Content that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired the Author Content. BookBaby is not responsible for, and has no liability for, any delays of our Licensees in removing the Author Content.
10. 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, in any marketing materials for the sale, promotion and advertising of the applicable Book, 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 Book).
(b) Promotion. You hereby grant to us and our Licensees the right to market, promote and advertise the Books 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, you own all right, title and interest in and to (i) the Author Content , (ii) the Books, (iii) the Samples, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you.
12. Monitoring of Your Content; Removal of Content from Website:
(a) Monitoring. BookBaby does not control or have the right to control the Author Content and does not have any obligation to monitor the Author Content for any purpose. BookBaby may choose, in its sole discretion, to monitor, review or otherwise access some or all of the Author Content, but by doing so BookBaby assumes no responsibility for the Author Content, no obligation to modify or remove any inappropriate elements of the Author Content, or to monitor, review or otherwise access any other author's content or artwork.
(b) Right of Removal. BookBaby reserves the right, to remove and not use or exploit any of the Author Content from the Website in its sole and absolute discretion, for any reason or for no reason, including if BookBaby believes such content: (i) is in violation of the BookBaby Content Policy; (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 or is alleged to violate the intellectual property rights, privacy rights or other rights or 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 the Author 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 the Author Content from the Website or any Licensee website or service. The removal of any of the Author Content shall not relieve BookBaby of the obligation to pay you any royalties that may have accrued prior to the removal of the Author Content.
(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by BookBaby's removal of the Author Content from the Website or Licensee's websites or services. In order for you to terminate this Agreement following the removal of any of the Author Content, you must send BookBaby a notice of Termination.
13. 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 email 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 [email protected]. 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.
14. 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 the Author 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 the Author 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 the Author 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.
15. Availability of Services:
The Services are provided on an "as is," "as available" basis, and 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 or performance 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 the Author Content uploaded to the Website or otherwise delivered to BookBaby as physical product.
16. 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 the Author Content, 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 the Author Content, and to use such individual's identifying or personal information (to the extent such information is used or contained in the Author 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 the Author Content does not plagiarize or pirate any other work or infringe upon or violate any copyright, trademark, trade secret or other proprietary right.
(iv) You represent and warrant that the Author Content does not contain SEO keyword spam, either in your manuscript or your metadata tags.
(v) You represent and warrant that the Author Content does not contain multiple hyperlinks to advertisements or affiliate marketing pages.
(vi) You represent and warrant that the Author 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 the Author 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 the Author Content does not violate state and federal laws or advocate illegal activities.
(ix) You represent and warrant that the Author 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 the Author Content is not likely to result in injury and the Author 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, and that the Author Content shall not contain any errors or omissions in any recipe, formula, design, or instruction which, if followed, might harm the user.
(xi) You represent and warrant that the Author 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 Books.
17. No Representations and Warranties With Respect to Sales and Distributions:
BookBaby makes no guarantees regarding the minimum number of unit sales or uses of the Author Content or regarding any revenue to be earned under this Agreement. 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 the Author Content, including by paying the royalties they owe us for the distribution of the Author Content. If a Licensee refuses to pay us for the use of the Author 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 the Author Content if such third party fails or refuses to pay such amounts to BookBaby upon BookBaby's request.
(a) Indemnification. You hereby indemnify, 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 arises out of any breach or alleged breach or violation of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding noninfringement of any 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 or require 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.
19. Copyright and Intellectual Property Infringements
Notice and procedure for making claims of copyright or other intellectual property infringements.
(a) BookBaby respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or the BookBaby Service.
(b) BookBaby’s intellectual property policy is to (1) remove material that BookBaby believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by "repeat infringers." BookBaby considers a "repeat infringer" to be any user that has uploaded Products or Submissions to the Service and for whom BookBaby has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such Products or Submissions. BookBaby has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon BookBaby’s own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or the BookBaby Service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a "Notification of Claimed Infringement" containing the following information to the Designated Agent identified below. Your communication must include substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit BookBaby to locate the material;
(iv)Information reasonably sufficient to permit BookBaby to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
(d) Designated Agent Contact Information. Notices of claimed infringement can be communicated:
Via E-mail : [email protected]
Via U.S. Mail : Attn: Copyright, 7905 North Route 130, Pennsauken, NJ 08110-1402
(e) Counter Notification. If you receive a notification from BookBaby that material made available by you on or through the Site or the BookBaby Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide BookBaby with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to BookBaby's Designated Agent through one of the methods identified in Section 11(d) of this TOS, and include substantially the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which BookBaby may be found, and that the subscriber will accept service of process from the person who provided notification under Section 11(c) of this TOS above or an agent of such person. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
(f) False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that: [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [BookBaby] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
(a) THE WEBSITE, THE SERVICES, 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 RELATING TO THE SERVICES, THE WEBSITE OR THIS AGREEMENT, 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 THE AUTHOR 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.
21. 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 THE AUTHOR 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 THE AUTHOR 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.
22. 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, or, in the absence of a valid electronic mail address, via any other method BookBaby may elect in its sole discretion, including, but not limited to, via posting on the Website.
(e) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the Laws of the State of New Jersey applicable to agreements entered into and to be wholly performed in New Jersey, 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.
23. 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 https://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 Book 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.