Publishing Agreement - OpenBooks.com

This agreement (the “Agreement”) is a binding agreement between the person or entity that is accepting this agreement (“you”) and OpenBooks Limited (together with its affiliates, “OpenBooks” or “we”) with respect to our receipt, conversion, indexing, and marketing of books and other digital content that we receive or have received from you (as more specifically defined below, the “Digital Content”) through or on the OpenBooks.com website (together with any successor or replacement website, the “Site” or “OpenBooks.com”) and the distribution of copies of such Digital Content to people who want to read it (collectively, “End Users”) (the “Service”). Your uploading and maintaining Digital Content on the Site will be referred to as your “Use of the Service.” This Agreement is additional to the Terms of Use to which you have already agreed.

Agreement. You accept this Agreement and agree to be bound by its terms by clicking agree or accept where you are given the option to do so. If you do not accept these terms, we will not provide the Service to you. If you are an entity, the individual person who accepts this Agreement represents and warrants that he or she has the authority to enter this Agreement as your authorized representative and to bind you to the terms of this Agreement.
Amendment of Agreement. If we make any changes to this Agreement, we will let you know either by e-mailing you at the address given in Your User Account (which is defined in Section 4 below) or by posting a notice of the changes conspicuously on the home page of the Site for at least thirty (30) days after the changes are effective. If you do not consent to such changes, you may withdraw your Digital Content from the Service and we will continue to pay you Royalties (which is defined in Section 12 below) on any End-User Payments (which is defined in Section 11 below) that we receive for your Digital Content as provided below. YOUR CONTINUED USE OF THE SERVICE FOLLOWING OUR NOTIFICATION OF CHANGES TO THE AGREEMENT WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO SUCH CHANGES, REMOVE YOUR DIGITAL CONTENT FROM THE SITE.
Term. The term of this Agreement will begin upon your acceptance of this Agreement and will continue until we or you terminate it.
Account Registration and Password Security
1. Setting Up Your User Account. In order to use the Service to distribute your Digital Content, you will need to set up an account (a “User Account”) and agree to our Terms of Use, if you have not already done so, upgrade that User Account to include the publisher fields, and accept this Agreement. (You may set up only one such account.) You can set up (and log into) your User Account through the Site or through Google Plus, Facebook, Twitter, and whatever other third-party services we identify. To set up a User Account with publisher capabilities, you will need to provide us with your real name, a valid street address, and a valid e-mail address, the information listed in Section 13(a) below (Required Information for Royalty Payments), and any other information that we ask for. All information you provide us in connection with establishing your User Account must be and remain accurate as long as you use the Service. You may not use a false identity or impersonate any person. If you do so, we may terminate your User Account immediately as described in Section 20 below. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify all information you provide in connection with your User Account. From time to time, we may send you e-mails concerning the Site, the Service, OpenBooks, and other subjects that we think may be of interest to you as a User, at the e-mail address in your User Account.
2. Password Security. You also will need to set up a password for your User Account. Your password for the Site may be used only to access the Site, use the Service, make available or withdraw your Digital Content, and review any reports, records, or other features we make available to you on the Site. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party except for any third party whom you authorize to use your User Account. You will be solely responsible for any use of or action taken under your password on the Site. If your password is compromised, you must change it immediately.
Prerequisites for Distribution of Digital Content
1. Delivery of Digital Content. You must deliver each item of Digital Content (a “Digital Content Item”) free and clear of viruses, worms and other potentially harmful or disrupting code and in accordance with our submission guidelines, format requirements, PUT LINKS and our Content Policy, which is stated in Section 5(f) below. Along with each Digital Content Item, you may deliver (i) materials that describe that Digital Content Item, (ii) excerpts from the Digital Content Item for us to use to promote the Digital Content Item, (iii) metadata for the Digital Content Item, such as its name or title, images and trim size of a Digital Content Item, and release date (“Metadata”), (iv) artwork and images, and (v) any trademarks, trade names, service marks, logos, commercial symbols and other designations contained in any of the foregoing (“Trademarks”) (collectively, “Supplemental Material”). If you do not provide a cover for your Digital Content Item, we may create one (a “Cover Image”) and attach it to that Digital Content Item. We will not return to you any electronic files that you deliver to us in connection with the Service.
2. Digital Content Item Information. For each Digital Content Item that you upload to the Site for distribution, you must provide all the information that we require on the registration form for each Digital Content Item and/or inside the Digital Content Item. That includes the name by which you wish to be identified as the author or publisher of that Digital Content Item. Whatever name you provide is the name by which we will attribute that Digital Content Item to you. If you do not provide that information, we will not distribute that Digital Content Item.
3. Recommended Price. For each Digital Content Item that you upload to the Site for distribution, you must provide a recommended price (the “Recommended Price”) in your User Account. You may change the Recommended Price of any Digital Content Item at any time. Any such change will be effective within five (5) business days. We may sell any of your Digital Content Items using foreign currencies. If we do, we will convert the Recommended Price for each such Digital Content Item to other currencies at an exchange rate we determine, and your Royalties (as defined in Section 12 below) will be paid according to that exchange rate. We may periodically update the converted Recommended Price in order to reflect current exchange rates. If you do not provide a Recommended Price, we will not distribute that Digital Content Item.
4. Provision of Other Requested Information. If we request that you provide additional information relating to any Digital Content Item, you will promptly provide the information requested, and you represent and warrant that any information and documentation you provide to us in response to such a request will be current, complete, and accurate, or we may remove that Digital Content Item from the Site (see Section 6 below) and withhold Royalties pursuant to Section 14 below.
5. Rights Clearances. You must have obtained (and paid for, if required) any and all licenses for the Digital Content that are necessary for us to exercise the Licensed Rights without our having any payment or other obligation to any third party (the “Necessary Rights”). You will be solely responsible for any violations of any infringements of third-party rights caused by or that actually or allegedly result from our exercise of the Licensed Rights with respect to any Digital Content Item that you upload or transmit to or through the Site or that is uploaded or transmitted to or through the Site, or that is provided or transmitted through your User Account.
6. Compliance with Content Policy. This paragraph states our Content Policy. You may not upload to the Site any Digital Content Item or Supplemental Material that (a) constitutes or contains pornography or hard-core material that depicts graphic sexual acts, (b) constitutes or contains content that most people would find disturbing, (c) is illegal, including, without limitation, a book that teaches people to engage in illegal conduct, (d) has been stolen from another party, (e ) threatens anyone’s right to privacy or constitutes or comprises a marketing list, or (f) infringes anyone’s right of publicity, including any Digital Content Item whose cover Displays a photo of a celebrity without his or her permission.
Content Rejection and Removal. We may reject or remove any Digital Content Item or any Supplemental Material that you have provided, for any reason, including, without limitation, (a) if you do not provide a Recommended Price, (b) if such Digital Content Item or Supplemental Material does not comply with our Content Policy (which is stated in Section 5(f)), as we may determine in our discretion, or (c) if we receive an “Infringement Notice,” which means a notice (i) of alleged copyright infringement under the U.S. Digital Millennium Copyright Act or the equivalent law of another jurisdiction, or a notice of another breach of proprietary rights, (ii) alleging that the distribution of a Digital Content Item defames a third party or violates a third party’s rights of privacy or publicity or any other personal right, or (iii) that otherwise challenges our right to exercise any of the Licensed Rights with respect to a particular Digital Content Item. (Our right to remove any Digital Content Item is in addition to our right to withhold Royalties with respect to that Digital Content Item pursuant to Section 14 below and to suspend or terminate the publisher features of your User Account pursuant to Section 20 below.) You may ask us to remove any Digital Content Item or any Supplemental Material at any time by notifying us in writing of your wish to remove that Digital Content Item, but we will have 72 (seventy-two) hours from our receipt of such a request to remove the Digital Content Item, and during that time, we may continue to exercise the Licensed Rights and the Related Rights (which is defined in Section 7 below).
Grant of Rights to Us
1. Licensed Rights. In consideration of the opportunity to receive Royalties (as defined below) from End Users and in consideration of any Royalties that you may actually receive from End Users, You grant us, throughout the term of this Agreement, a nonexclusive, worldwide, license (the “License”) to do the following with Digital Content Item that you upload to OpenBooks.com (collectively, the “Licensed Rights”).
  1. Reformat, convert and encode the Digital Content Item, in whole or in part, and any Metadata that you provide with the Digital Content Item, in any electronic format that we deem appropriate, whether now known or later invented, for or in connection with the storage and display of the Digital Content Item and the distribution of copies of the Digital Content Item to End Users.
  2. Reproduce, index and store the Digital Content Item and any Supple-mental Material, in its original format or any converted format, on one or more computer facilities, websites, or catalogues.
  3. Display any Supplemental Material and up to twenty percent (20%) of the Digital Content Item for the purpose of promoting and advertising (“Marketing”) the Digital Content Item, the Site and the Service to End Users without charge and without our paying any fees to you, both in any Marketing that we may do (in our sole discretion) and in response to End User search queries.
  4. Prepare derivative works based on the Digital Content Item and any Supplemental Material, such as summaries, for the purpose of marketing both the Digital Content Item, the Site and the Service at our discretion (but not including any work that would be a substitute for the Digital Content Item, such as a translation).
  5. Distribute copies of the Digital Content Item to End Users and grant each End User a perpetual, irrevocable, non-exclusive, and worldwide (and, if he or she does not choose to make an End-User Payment, royalty-free) license, to do the following with (“Use”) the Digital Content Item, for the End User’s personal, non-commercial purposes, as often as the End User wishes. (i) download the Digital Content Item to and display it on the End User’s computer, e-book reader or other reading device, or other mobile device, (ii) print it out, (iii) display and perform it publicly, (iv) distribute copies of it to as many people as the End User wishes for their personal non-commercial purposes, (v) if the End User has a user account on the Site (a “User Account”), store a copy of it there on a “Virtual Shelf,” and (vi) if the End User paid for it, access it and download it again from his or her Virtual Shelf even if it is no longer available on the Site (collectively, the “End-User License”).
  6. Employ watermarking techniques (“Watermarks”) in connection with the distribution of your Digital Content, if we choose, in our sole discretion.
  7. Sublicense our affiliates and independent contractors to exercise the Licensed Rights.
2. Related Rights. You also grant us the non-exclusive, worldwide, royalty-free right to do the following (the “Related Rights”).
  1. Market the Digital Content Item if and as we see fit, in our sole discretion, with or without any Supplemental Material, provided that we will not owe you any fees for any Marketing efforts, and you acknowledge that we have no obligation to Market, distribute, or offer to license any Digital Book, or to continuing Marketing, distributing or licensing a Digital Book after we have commenced doing so.
  2. From time to time, send you e-mails concerning your Digital Content, the Site, the Service, and any other subject that we think may be of interest to you as an author or publisher, at the e-mail address in your User Account.
  3. Do anything else that this Agreement permits or obligates us to do.
3. Irrevocability. Although you may terminate the License with respect to any Digital Content Item by withdrawing that Digital Content Item from the Site or as part of a termination of this Agreement, the License is irrevocable with respect to any copies of that Digital Content Item that have already been distributed through the Site. Once you upload a Digital Content Item onto the Site, you are consenting to the viral distribution of that Digital Content Item by and to an infinite number of people who may or may not make an End-User Payment (as that term is defined in Section 11 below). Even if you terminate the License with respect to a particular Digital Content Item and we no longer have the right to make that Digital Content Item available to new End Users, we have no obligation to terminate any End-User License or direct End Users to destroy their existing copies of that Digital Content Item and we may retain a copy of the Digital Content Item on the Virtual Shelf of each End User who has made an End-User Payment for that Digital Content Item and permit such End User to download that copy as often as he or she wishes.
Maintenance of Licensed Rights. You will use commercially reasonable efforts to maintain, and you will not do anything intentionally to prejudice, the Licensed Rights or the Related Rights in any Digital Content Item. If you lose any Necessary Rights in any Digital Content Item or you receive an Infringement Notice concerning any Digital Content Item, you will immediately remove that Digital Content Item from the Site. For the avoidance of doubt, nothing in this Section 8 is intended to relieve you of your indemnification obligation regarding Claims, which is set forth in Section 15(b).
Grant of Rights to You. If we create a Cover Image for any of your Digital Content Items, we grant you a worldwide, non-exclusive, royalty-free license to use that Cover Image for any lawful purpose related to promoting your Digital Content Item.
Ownership of Intellectual Property. You will retain all right and title in and to your Digital Content. We will own and retain all right, title and interest, including, without limitation, copyright and patent rights, in and to the Site, the Service, the OPENBOOKS and OpenBooks.com trademarks (the “OpenBooks Trademarks”), and all materials we use or provide to you for use relating to your Digital Content (such as a generic cover image used for your Digital Content if you do not provide one) (“OpenBooks Materials”), as well as all individual and aggregate data that we obtain, collect or compile from or about End Users (collectively, the “OpenBooks Intellectual Property”). This Agreement does not grant you any license or other rights to any OpenBooks Intellectual Property other than the right to use the Service as provided in this Agreement. Nothing in this Agreement restricts any rights we may have under applicable law.
Recommended Price and End User Payments
1. Communication of Recommended Price to End Users. We will (i) notify End Users of the Recommended Price (and of any applicable value-added or similar taxes that apply to a consumer’s purchase of a product) (“Transaction Taxes”), (ii) encourage them to make payments based on the Recommended Price or their good-faith valuation of the Digital Content Item, and (iii) provide a hyperlink that enables an End User to provide electronic payment for each Digital Content Item through PayPal, Stripe, or other merchant processing service (each, a “Payment System”) that we may choose in our sole discretion) in the payment amount of his or her choice (each, an “End-User Payment”).
2. No End User Payment Required. Despite the fact that we will be notifying End Users of the Recommended Price and making it technically possible for End Users to pay the Recommended Price, we will be making all of your Digital Content available for Use by End Users at no charge and End Users shall have no obligation to make any payments for Using your Digital Content (as “Use” is defined in Section 7 above).
3. Payment Processing and Refunds. To the extent not prohibited by applicable laws, as between you and us, we will have sole and complete discretion and responsibility for processing and collecting End-User Payments, granting requests for and issuing refunds (and offsetting any refunds against Royalties that we may owe you), and addressing any End-User requests for other customer service.
Royalties
1. Royalties and Deductions. You will earn 70% (seventy percent) of each Net End-User Payment for each of your Digital Content Items (a “Royalty”). A “Net End-User Payment” means the total End-User Payment received for a license of a Digital Content Item, less any (i) refunds, (ii) credit card fees and other fees imposed by any Payment System (which is defined in Section 11(a) above) (iii) any sales, use, value-added, or similar taxes and other charges such as duties, customs, and government-imposed surcharges charged to a customer or applied with respect to sales or licenses to a customer (“Transaction Taxes”), (iv) bad debt (End-User Payments that we are not able to collect), or (v) other charges that we are entitled to take against your Royalties (collectively, “Deductions”). If we discover that we have made an error in calculating Deductions due from a Net End-User Payment to calculate your Royalties, or if after making a payment of Royalties to you, we discover that we must pay an additional Transaction Tax on Royalties that we paid to you, or in any other event that results in our having overpaid you, we may correct that error and/or withhold Royalties as described in Section 14 below, and notify you that we have done so in your next Royalty Statement (which is defined in Section 13 below).
2. Income Taxes. You are responsible for paying any income or other taxes that you owe under local law with respect to Royalties that we pay you under this Agreement (any such taxes, “Income Taxes”). You will defend, indemnify, and hold us and the OpenBooks Parties (which is defined in Section 15(b) below) harmless, from and against any and all third-party claims, proceedings, actions, expenses, and damages, including attorneys’ fees, in any way resulting out of your failure to pay any Income Taxes to any taxing authority in connection with the Royalties that you receive under this Agreement.
3. Third Parties. You are and will be solely responsible for accounting and paying any co-owner or co-administrator of any Digital Content Item (or any portion thereof) any royalties that you may owe them for the Use of the Digital Content Item by you, us, or any End User. Under no circumstances will we be responsible for paying to any third party any percentage of Royalties that we may pay you.
Payment. We will pay you Royalties as provided in this Section 13 (subject to any amendment to this Agreement) for as long as the Service is in operation.
1. Required Information for Royalty Payments. In order to receive Royalties, you must go into your User Account and (i) choose, from the available options, the Payment System through which you want to receive your Royalties, (ii) provide and maintain complete, accurate, up-to-date information about your User Account in that Payment System, and (iii) identify the currency in which you want to be paid. We will pay you your Royalties in the currency you choose as long as your chosen Payment System supports that currency. If your chosen Payment System does not support that currency, we will pay you your Royalties in United States Dollars. If you do not choose a Payment System, or you do not provide complete and accurate information about your Payment System Account and keep that information up to date, we will not be able to pay you Royalties.
2. Reporting of Royalties; Royalty Statements. When we receive an End-User Payment for a Digital Content Item, we will deduct any applicable Deductions as specified in Section 12 above, calculate the amount of Royalties that you are entitled to receive, and report the Royalties due in your User Account. In addition, we will publish a royalty statement (a “Royalty Statement”) in your User Account once a month showing all Royalties that became due to you in the preceding calendar month. If you dispute any Royalty Statement, you must notify us of such dispute within six months after the date on which that Royalty Statement is made available, or you will waive your right to dispute that Royalty Statement. Any action that you may take within that period, including, without limitation, any legal proceeding, will be limited to a determination of the amount of Royalties payable by us, to you, if any, for the accounting period covered by that Royalty Statement, and your sole remedy will be the recovery of those monies with no interest.
3. Requesting Payment; Uncollected Royalties. To receive payment of Royalties that have been posted in your User Account, you must make an express request for payment through your User Account. If you do not make a request for payment of Royalties, we will not arrange for the payment of Royalties to you. You have five years from the date on which we post a Royalty Statement to request that we pay you the Royalties shown on that Royalty Statement. We will have no obligation to pay you any Royalties that remain uncollected in your User Account for five years after the date on which we posted the Royalty Statement that included those Royalties.
4. Processing of Payment Requests. We reserve the right to hold Royalties for a Digital Content Item for ninety (90) days from the date on which we receive the first End-User Payment for it, even if we have reported Royalties in your User Account and on a Royalty Statement, so that we may be reasonably sure that there are no Infringement Claims against that Digital Content Item before we start paying Royalties to you. After that, we will pay you Royalties within 14 (fourteen) business days of receiving a request for payment of those Royalties.
5. Deduction of Payment System Transfer Fees. Most Payment Systems charge fees for transfers of funds (“Transfer Fees”). We will deduct any applicable Transfer Fees from the payments of Royalties that we make to you.
6. Payment of Royalties after Termination. In the event that (i) you withdraw any Digital Content Item from the Service, or (ii) this Agreement is terminated, you authorize us to continue collecting and/or administering the collection of End-User Payments with respect to that Digital Content and paying you Royalties on such End-User Payments, and we agree to do so, subject to Sections 12, 13, and 14.
Withholding of Royalties. You authorize us to withhold Royalties and/or offset them against future payments of Royalties as indicated below. Our exercise of these rights does not limit other rights we may have to withhold or offset Royalties or exercise other remedies, including, without limitation, our right to terminate this Agreement, remove any Digital Content Item from the Service, or seek indemnification from you as provided in Section 15 below.
1. Refund Offset. If we pay you Royalties on the license of a Digital Content Item to an End User and we later issue a refund or credit for that license, we may offset the amount of the Royalties that we previously paid you with respect to that license against future Royalties from the license of that Digital Content Item or other Digital Content Items, or we may require you to remit that amount to us.
2. Remedial Offset. If we discover that we have made an error in calculating Deductions due from a Net End-User Payment to calculate your Royalties, or if after making a payment of Royalties to you, we discover that we must pay an additional Transaction Tax on Royalties that we paid to you, or in any other event that results in our having overpaid you for licenses of a Digital Content Item, as described in Section 12 above, we may offset any Royalties that we previously paid you against current or future Royalties that we may owe you for licenses of that Digital Content Item or other Digital Content Items, up to the amount of the overpayment, or we may require you to remit to us an amount equal to the amount of the overpayment.
3. Infringement Notice. If we receive an Infringement Notice (which is defined in Section 6 above) with respect to a Digital Content Item, we may withhold all Royalties due to you in connection with that Digital Content Item or any other Digital Content Item that you have uploaded. until we reasonably determine the validity of the claim asserted in the Infringement Notice. If, upon a reasonable investigation, we determine that you did not have, or it is reasonably possible that you did not have, the Necessary Rights to distribute that Digital Content Item through the Service, then, in addition to removing the Digital Content Item from the Service, (i) we will not be obligated to pay you any Royalties that we have collected for past licenses of that Digital Content Item that we have not yet paid you, (ii) we may offset any Royalties that we previously paid you with respect to licenses of that Digital Content Item against current or future Royalties that we may owe you for licenses of that Digital Content Item or other Digital Content Items, and (iii)we may require you to remit to us an amount equal to the Royalties we have paid you for licenses of that Digital Content Item.
4. Non-Compliance with Content Policy. If we determine that one of your Digital Content Items does not comply with the Content Policy, then, in addition to removing the Digital Content Item from the Service, (i) we will not be obligated to pay you any Royalties that we have collected for past licenses of that Digital Content Item that we have not yet paid you, (ii) we may offset any Royalties that we previously paid you for licenses of that Digital Content Item against current or future Royalties that we may owe you with respect to licenses of that Digital Content Item or other Digital Content Items, and (iii) we may require you to remit to us an amount equal to the Royalties we have paid you for licenses of that Digital Content Item.
5. Possible Claim or Dispute. If, without having received any notice from a third party, we reasonably conclude, based on information available to us, that your actions and/or performance in connection with this Agreement, including, without limitation, your provision of inaccurate information in your User Account, may generate or result in an Infringement Claim, a refund to an End User, or some payment, claim or dispute that is not covered elsewhere in this Section 14, then we may withhold the payment of Royalties for the shorter of (a) a period of ninety (90) days following the initial date of suspension; or (b) completion of any investigation(s) regarding any of your actions and/or performance in connection with this Agreement. If such investigation indicates that we are likely to receive an Infringement Claim, be required to pay a refund to an End User, or respond to such other claim or dispute, we will notify you and continue to withhold Royalties until such matter is resolved.
Representations, Warranties and Indemnity
1. Representations and Warranties. In addition to any other representations and warranties that you have made elsewhere in this Agreement, you represent and warrant that.
  1. You are legally capable of entering into a binding contract.
  2. You have the full right, power and authority to enter into and fully perform this Agreement in your own right, if you are accepting as an individual, and on behalf of your company, if you are accepting on such company’s behalf, and will comply with the terms of this Agreement.
  3. Each Digital Content that you provide for distribution through the Service will comply with the Content Policy.
  4. All information that you provide in your User Account and in the registration form and/or inside each Digital Content Item will be correct, accurate and complete.
  5. You own and will own all right and title in and to each Digital Content Item that you provide for distribution through the Service, or you otherwise have all Necessary Rights to upload that Digital Content Item to the Site for distribution as part of the Service and to license the Licensed Rights to us.
  6. Neither our exercise of the Licensed Rights nor any End User’s exercise of rights under an End-User License will violate or infringe upon the copyrights, trademarks, privacy rights, rights of publicity, moral rights, or any other proprietary or personal rights of any person or entity.
2. Indemnification Obligations. To the fullest extent permitted by applicable law, you will defend and/or indemnify, and hold harmless us and our affiliates, subcontractors, licensees, and assigns, and our and their officers, directors, agents, and employees (the “OpenBooks Parties”) from and against any loss, liability, damage, (including reasonable attorneys' fees) arising from or relating to any claim or action arising out of an actual or alleged breach of your representations, warranties or obligations set forth in this Agreement (each, a “Claim”). Any OpenBooks Party will be entitled to participate in the defense and settlement of the Claim with counsel of its own choosing, and you may not in any event settle any Claim without the prior written consent of such OpenBooks Party. We reserve the right to assume, or have any OpenBooks Party assume, the exclusive defense and control of any Claim subject to indemnification by you, and you will cooperate as we or such OpenBooks Party may require in the defense of any Claim.
Disclaimer of Warranty. THE SERVICE IS PROVIDED “AS IS.” YOU, NOT WE, ARE THE PUBLISHER OF YOUR DIGITAL CONTENT FOR ALL INTENTS AND PURPOSES. WE SPECIFICALLY DISCLAIM, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SITE AND THE SERVICE, AND DIGITAL CONTENT OR OTHER PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT. WE EXPRESSLY DISCLAIM ANY PROMISE, REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOU WILL RECEIVE THE RECOMMENDED PRICE OR ANY PAYMENT WHATSOEVER FOR ANY DIGITAL CONTENT ITEM. YOU ACKNOWLEDGE AND AGREE THAT WE CANNOT ENSURE THAT DIGITAL CONTENT SUBMITTED BY YOU OR ON YOUR BEHALF WILL BE PROTECTED FROM INFRINGEMENT OR OTHER MISUSE OR THAT END USERS WILL COMPLY WITH WHATEVER USAGE RULES WE MAY TRY TO IMPOSE ON THEIR USE OF DIGITAL CONTENT. WE ALSO EXPRESSLY DISCLAIM ANY ABILITY TO CONTROL ANY WATERMARK THAT MAY BE EMPLOYED IN CONNECTION WITH YOUR DIGITAL CONTENT AND ANY REPRESENTATION OR WARRANTY AS TO THE EFFICACY OF SUCH WATERMARK.
Limitation of Liability. IN NO EVENT WILL WE OR ANY OF THE OPENBOOKS PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO, THE FAILURE OF ANY END USER TO COMPLY WITH ANY CONTENT USAGE RULES STATED IN OUR AGREEMENT WITH SUCH END USER, THE FAILURE OF ANY WATERMARK, THE OPERATION OR FAILURE TO OPERATE OF ANY PAYMENT SYSTEM, OR ANY SYSTEM OR PROCESS FAILURE, INTERRUPTION, INACCURACIES, OR ERROR, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. 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 NO EVENT WILL OUR AND/OR THEIR LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM EXCEED THE AMOUNT OF ROYALTIES PAID BY US TO YOU UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM.
Release. IN CONSIDERATION OF BEING PERMITTED TO ACCESS AND USE THE SITE AND THE SERVICE AND TO RECEIVE ROYALTIES, YOU HEREBY RELEASE US AND THE OPENBOOKS PARTIES (WHICH IS DEFINED IN SECTION 14) FROM ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH DISPUTES BETWEEN YOU AND THIRD PARTIES IN CONNECTION WITH YOUR USE OF THE SITE AND THE SERVICE. IF YOU ARE A CALIFORNIA RESIDENT, IN CONNECTION WITH THE FOREGOING RELEASE, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE 1542 AND ANY OTHER APPLICABLE LAW OR STATUTE, WHICH SAYS, IN SUBSTANCE. “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Force Majeure. We will not be liable to you for any failure or delay in the performance of our obligations under this Agreement caused by any event or circumstance beyond our control, including, but not limited to, denial-of-service attacks, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, and labor conditions.
Termination and Suspension
1. Termination or Suspension by Us. In addition to our other rights of termination stated in this Agreement, we are entitled to terminate this Agreement and your access to the Service as a publisher of Digital Content at any time, including, without limitation, if we stop offering the Service, upon written notice to you or if you violate this Agreement or the Terms of Use. We may also suspend the publisher features of your User Account at any time with or without notice to you, for any reason in our discretion, including, without limitation, the reasons stated earlier in this Agreement.
2. Termination by You. You are entitled to terminate this Agreement at any time by providing us written notice of termination.
3. Consequences of Termination. If this Agreement terminates, we will remove your Digital Content Items from the Site within 72 (seventy-two) hours from the time on which we issued or received the notice of termination, subject always to Section 7(a)(v) and Section 7(c), but we will continue to be obligated to pay you Royalties on End-User Payments that we receive for licenses of your Digital Content after termination as provided in this Agreement. To enable us to collect such End-User Payments, we may keep the following content and information posted on the Site for as long as we wish for each of your Digital Content Items. the title, the name of the author/publisher, a short description, the cover or Cover Image, the most recent Recommended Price, Supplemental Material, derivative works based upon Supplemental Material, the average score given to the Digital Content Item by Registered Users who reviewed it, User Reviews and User Comments, and all information necessary to enable an End User to make an End-User Payment.
4. Consequences of Suspension. If we suspend your User Account, we will not remove your Digital Content, and we may continue to make it available to End Users, but you will not be able to upload any new Digital Content and you will not be able to request the payment of Royalties from your User Account or participate in any other activities on the Site.
5. Disputes. Any dispute or claim relating in any way to this Agreement will be resolved by binding arbitration, rather than in court, conducted by JAMS (www.jamsadr.com) in New York County, New York, U.S.A. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial. You or we may bring suit in court on an individual basis only, and not in a class, consolidated or representative action, to apply for injunctive remedies. You may bring any such suit for injunctive remedies only in the courts located in New York County, New York, U.S.A. YOU HEREBY EXPRESSLY AND IRREVOCABLY CONSENT TO AND WAIVE ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS WITH RESPECT TO A JURISDICTION AND VENUE IN THE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR ALL MATTERS ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE SERVICE.
General Legal Provisions
1. Governing Law. This Agreement will be governed by applicable United States federal law, and the laws of the State of New York, without giving effect to any conflict of laws principles. Notwithstanding the provision in the preceding sentence with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
2. Applicability of Other Laws. You are solely responsible for informing yourself of the applicable laws of the jurisdiction in which you Use the Service and complying with those laws. If your Use of the Service would be contrary to the laws of the jurisdiction in which you are located, do not Use the Service.
3. Severability. If any provision of this Agreement is held invalid by a court or other tribunal with jurisdiction over the parties to this Agreement, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect.
4. Waiver. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party's rights to subsequently enforce the provision.
5. No Construction Against Drafter. The rule that an agreement will be construed against the drafter shall not apply to this Agreement.
6. Electronic Communication; Notices. You consent to the use of electronic means to complete this Agreement and to provide you with any notices we give you in relation to this Agreement. To be effective, any notice given by a party under this Agreement must be in writing and delivered (i) if by us, via email, via a posting on the Site or via a message through your User Account, or (ii) if by you to us, via email to legal@openbooks.com. Notices to you will be effective and deemed received on the date transmitted or posted. Notices to us will be effective and deemed received on the date on which we acknowledge receipt.
7. Survival. The provisions of this Agreement that concern ownership of intellectual property, grants of rights to us, End-User Payments, calculation of Royalties, withholding of Royalties, payment, representations and warranties, indemnification, limitation of liability, releases, disputes, termination, and governing law will survive termination.
8. Assignment. If we assign the business of the Site or the Service to another entity, we may assign our rights and obligations under this Agreement to the new entity without notice to you.
9. Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to its subject matter and does not confer any rights or remedies upon any other person other than you and us.

Agreement Version February 17, 2015

OpenBooks.com™ Publishing Agreement