DIGITAL PUBLICATION DISTRIBUTION AGREEMENT

This Digital Publication Distribution Agreement (the “Agreement”) is made as part of an online application (the “Application”) for participation in a digital self-publication and distribution program (“Program”) from Amazon Digital Services, Inc. (“Amazon” and, together with Amazon’s affiliates, “we” or “us”). This Agreement is a binding agreement between Amazon and the individual or entity identified as the Publisher in the Application (“you” or “Publisher”). The Agreement contains the complete terms and conditions that apply to your participation in the Program. As used in this Agreement, Amazon “affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with Amazon. If the Publisher is an entity, “Authorized Representative” means the individual person identified as Authorized Representative in the Application who is accepting this Agreement on behalf of Publisher and, by accepting the Agreement in accordance with the instructions on our website, Authorized Representative hereby represents and warrants that:

Authorized Representative is entitled to enter this Agreement as an authorized representative of Publisher and to bind Publisher to the terms of this Agreement.

The information provided for Publisher in the Application is accurate, and states, without limitation, the real name, address and e-mail address of Publisher and Authorized Representative.
Amendment. We reserve the right to change the terms of this Agreement on thirty (30) days’ advance notice. We will notify you of changes to this Agreement by sending you an e-mail to the e-mail address registered for you in the Application. If you do not agree to the changes, you will be entitled to terminate the Agreement effective on thirty (30) days’ advance notice by providing us written notice (in the manner provided in Section 15) of termination due to the changes within seven (7) days of our notice to you. IF YOU DO NOT GIVE US NOTICE OF TERMINATION, YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR NOTICE TO YOU WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES.

Titles; Digital Books. This agreement covers each individual content file (a “Title”) that you submit to us in accordance with our Submission Requirements for the Program. The Program allows customers to purchase your Titles in the form of digital files that customers can download and access online (“Digital Books”).

Digital Books; Marketing and Promotion. You agree that we may market and promote your Digital Books by making chapters or portions of your Titles available to prospective customers without charge, and permitting prospective customers to see excerpts of the Digital Book in response to search queries. Amazon will not owe you any fees for the marketing and promotional efforts described above. The Program may include features that allow users to print one or more pages of your Titles.

Pricing and Program Terms. As part of your Application, you will provide us with a suggested retail price for each Title (“Suggested Retail Price” or “SRP”). The Suggested Retail Price you provide to Amazon must be consistent with the SRP you have provided to other retailers and wholesalers. However, we have sole and complete discretion to set the retail price to our customers for Digital Books. We are solely responsible for all promotions and solicitations to be used in connection with the marketing and sale of your Digital Books, and for processing payments, payment collection, requests for refunds and related customer service, and we will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Program. You acknowledge that we have no obligation to market, distribute, or offer for sale any Digital Book or part thereof, or to continuing marketing, distributing or selling a Digital Book after we have commenced doing so.

Royalties. Provided you are not in breach of your obligations under this Agreement, we will pay you, for each Digital Book we sell, a royalty equal to thirty-five percent (35%) of the applicable Suggested Retail Price for such Digital Book, net of refunds, bad debt, and any taxes charged to a customer
(including without limitation sales taxes) (a “Royalty”).

Payment Terms. We will pay Royalties approximately sixty (60) days following the end of the calendar month during which applicable sales of Digital Books occur. We will, concurrently with payment, provide statements providing detail regarding sales of Digital Books and corresponding Royalties. All payments will be made in U.S. dollars via Electronic Funds Transfer (“EFT”) payments. You will not be permitted to register for the Program without providing a valid U.S. bank account number to receive EFT payments. We will accrue and withhold payments until the total amount due is at least $10, provided, however, that we may make a payout of all accrued amounts at any time in our discretion. All statements shall be conclusive, final and binding, unless Publisher gives Amazon written notice stating the specific basis for objection within six (6) months after the date rendered. You shall not maintain any action or proceeding against us in respect of any such statement unless you commence that action or suit within six (6) months following the date that you provide Amazon with the written notice referred to in the immediately preceding sentence. Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by Amazon to you for the accounting periods in question, and your sole remedy shall be the recovery of those monies with no interest thereon.

Taxes. We are responsible for collecting and remitting any and all taxes imposed on our sale of Digital Books to customers. You are responsible for any income or other taxes due and payable resulting from amounts owed to you by us under this Agreement. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. We maintain the right, however, to deduct or withhold any and all applicable taxes from such amounts, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.

Rights Granted. You hereby grant to us, throughout the term of this Agreement, a nonexclusive, irrevocable, worldwide right and license to distribute Digital Books as described herein, such right to include, without limitation, the right to:

(a) reproduce and store Titles on one or more computer facilities, and reformat, convert and encode Titles as Digital Books;
(b) display, market, transmit, distribute, and otherwise digitally make available all or any portion of Digital Books through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view online, including on Portable Devices;
(c) permit customers to “store” Digital Books that they have purchased from us on Amazon’s servers (“Virtual Storage”) and to re-download such Digital Books from Virtual Storage from time to time;
(d) display and distribute
(i) your trademarks and logos in the form you provide them to us as part of your Application or within Titles (with such modifications as are necessary to optimize their viewing on Portable Devices), and
(ii) other limited portions of Titles, in each case on and through any Amazon Properties and solely for the purposes of marketing, soliciting and selling Digital Books;
(e) use, reproduce, adapt, modify, and create derivative works of any metadata that you submit as part of your Application for the purpose of improving categorization, recommendations, personalization features and other features of any Amazon Properties; and
(f) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) Titles as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display). In addition, you agree that Amazon may permit its affiliates and independent contractors, and affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement. “Amazon Properties” means the website with the primary home page identified by the URL http://www.amazon.com, together with any successor or replacement thereto (the “Amazon Site”), and any other web site or online point of presence, on any platform, that is owned or operated by or under license by Amazon or co-branded with Amazon (such as www.borders.com , www.waldenbooks.com, and www.target.com ), and any web site or online point of presence through which any Amazon Properties or products available for sale thereon are syndicated, offered, merchandised, advertised or described. “Portable Device” means any portable device that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, or video and/or other content.

Term and Termination. This Agreement will remain in effect unless and until terminated by either party in accordance with this Section. Amazon shall have the right, in its sole discretion, to terminate this Agreement without cause upon not less than sixty (60) days’ advance notice to you. All rights to Digital Books acquired by customers prior to termination shall survive termination, and Amazon shall be entitled to retain archival copies of the Licensed Digital Content after termination in order to provide re-downloads to customers who have purchase Digital Books prior to termination. The following provisions of this Agreement will survive termination: Section 4, Sections 5-7 (but only to the extent of any payments that are accrued but unpaid at termination), Sections 9-15, and any provisions that define capitalized terms in the foregoing sections.

Technology.You acknowledge that we will be entitled to utilize DRM technology in connection with the distribution of Digital Books but are not obligated to do so. Accordingly, there may be no technology or other limitation imposed by us on copying or transfer of any Digital Book we distribute.
Ownership and Control of Amazon Properties. Subject to the authorizations granted to us hereunder, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to the Titles. We retain all ownership rights in and to the copyrights and all other rights and interests in and to the Program and the Amazon Properties. We are solely responsible for, and shall have full discretion with respect to the design and operation of the Program and the Amazon Properties and the marketing therefor, provided that Amazon’s use of the Titles pursuant to the rights granted herein shall be subject to the terms of this Agreement. In the event that you elect to provide suggestions, ideas, or other feedback to Amazon or any of its affiliates in connection with the Amazon Properties or the Program (“Feedback”), Amazon and its affiliates shall be free to use and exploit the same in any manner without restriction and without any need to compensate you therefor.

Clearances. With respect to all Titles, you shall obtain and pay for any and all necessary clearances and licenses for the Titles to permit our exercise of the rights granted hereunder without any further payment obligation by us, including, without limitation, all royalties and other income due to any copyright owner.

Representations, Warranties and Indemnities. Publisher represents nd warrants that: (i) it is a corporation or other entity or a sole proprietorship or person domiciled in the United States and that the information provided for Publisher in the Application is accurate; (ii) it has the full right, power and authority to enter into and fully perform this Agreement and shall comply with the terms of this Agreement; (iii) prior to Publisher’s or its designee’s delivery of any content, it shall have obtained all rights that are necessary for Amazon or its affiliates to exercise the rights granted hereunder; (iv) neither the exercise of the rights authorized hereunder nor any materials embodied in the content nor its sale or distribution as authorized herein will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction; (v) it will ensure that all Titles delivered to Amazon hereunder comply with the technical delivery specifications provided by us; and (vi) it is and shall be solely responsible for accounting and paying any co-owners or co-administrators of any Title or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable hereunder. Publisher shall indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of Publisher’s representations or warranties set forth herein. We shall be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.

Limitation of Liability. EXCEPT WITH RESPECT TO OUR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 15.1, WE WILL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT SHALL OUR LIABILITY HEREUNDER EXCEED THE AMOUNT OF FEES DUE AND PAYABLE BY AMAZON UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER ACKNOWLEDGES AND AGREES THAT AMAZON CANNOT ENSURE THAT TITLES SUBMITTED BY OR ON BEHALF OF PUBLISHER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT SUBSCRIBERS WILL COMPLY WITH ANY CONTENT USAGE RULES AMAZON MAY MAKE APPLICABLE IN CONNECTION WITH USE OF DIGITAL BOOKS, AND AMAZON WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY SUCH CONTENT USAGE RULES.

Miscellaneous. This Agreement may not be amended, except in writing signed by both parties or as provided in Section 1 above. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall 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 shall remain in full force and effect. The parties to this Agreement are independent contractors. Each party shall bear its own costs and expenses in performing this Agreement. Amazon will send all notices and other communications to you at the e-mail address or the mailing address that you provide in connection with your Application. You must send all notices and other communication relating to this Agreement to Amazon in accordance with the instructions available here – http://forums.digitaltextplatform.com/dtpforums/entry.jspa?externalID=34&categoryID=12. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other, except that (i) Amazon may assign any of its rights and obligations under this Agreement without consent and (ii) you may assign all of you rights and obligations under this Agreement to any corporation or other entity domiciled in the United States without consent in connection with the sale of all or substantially all of the assets of a Title; provided that you shall give Amazon written notice of any such assignment no later than ten (10) business days following such assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS OR THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. CONTENT PROVIDER HEREBY IRREVOCABLY CONSENTS AND WAIVES ANY OBJECTION TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED AT KING COUNTY, WASHINGTON WITH RESPECT TO ANY CLAIMS, SUITS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersedes any and all prior or contemporaneous agreements between the parties with respect to the subject matter hereof and does not confer upon any other person other than the parties any rights or remedies hereunder.

Popularity: 64% [?]

You Should Also Check Out This Post:

More Active Posts: