ONLINE PUBLISHING SERVICES WEB SITE TERMS AND CONDITIONS OF USE
1. INTRODUCTION
This Terms of Use Agreement (‘‘Agreement’’) is made by and between ePublishing.com, a [State] corporation, with offices at [street, suite, city, state, zip code] (‘‘ePublishing’’) and you (‘‘you,’’ “your,’’ or ‘‘User’’). This Agreement contains the terms and conditions that govern your use of this Web Site.
BY CLICKING THE ‘‘I AGREE’’ BUTTON OR BY ACCESSING, VISITING, BROWSING, USING, OR ATTEMPTING TO INTERACT WITH ANY PART OF THIS WEB SITE, OR OTHER EPUBLISHING SOFTWARE, SERVICES, WEB SITES OR ANY OF EPUBLISHING’S LICENSEES SERVICES OR SOFTWARE (COLLECTIVELY ‘‘SERVICES’’), YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE ANY PART OF THIS WEB SITE.
EPUBLISHING RESERVES THE RIGHT, FROM TIME TO TIME, WITH OR WITHOUT NOTICE TO YOU, TO MAKE CHANGES TO THIS AGREEMENT IN EPUBLISHING’S SOLE DISCRETION. CONTINUED USE OF ANY PART OF THIS WEB SITE CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. THE MOST CURRENT VERSION OF THIS AGREEMENT, WHICH SUPERSEDES ALL PREVIOUS VERSIONS, CAN BE REVIEWED BY CLICKING ON THE ‘‘TERMS OF USE’’ HYPER-LINK LOCATED AT THE BOTTOM OF EVERY PAGE ON THE EPUBLISHING WEB SITE.
2. GENERAL RULES
A. ePublishing is a tool to facilitate the exchange of information and knowledge over the Internet. Our Site enables users to publish, and other people to purchase, digital content in electronic, CD-ROM, or printed formats. Digital content (‘‘Content’’) may consist of information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials.
B. The Services are offered on an ‘‘as is’’ basis and used by the User solely at his or her own risk. All personally identifiable information provided by the User in connection with Services shall be used by ePublishing to provide services and features to the User and to maintain the associated Web Sites, including ePublishing.com.
C. You will comply with all of the terms and conditions of this Agreement and all applicable laws, regulations, and rules when you use the Services, whether you browse the ePublishing Web Sites or become a User.
3. SCOPE OF PUBLISHING SERVICES
A. Users retain their copyright in the Content and grant ePublishing the right to post, display, copy, sell, and distribute that Content within the limitations set by the User during the online publishing process.
B. ePublishing has the right to excerpt User content for use in marketing materials, provided that ePublishing credits the User and/or the original artist, and to make minor modifications to the Content for technical reasons.
C. For each sale of your Content for which ePublishing receives payment, ePublishing will pay you the royalty amount that you set during the publication process.
D. ePublishing and its affiliates provide Services on an ‘‘as is’’ basis.
E. ePublishing shall make no effort to validate any information provided by the User for use with Services for content, correctness, or usability.
F. Use of ePublishing services requires a certain level of knowledge in the use of the Internet and World Wide Web. The User is required to have the necessary knowledge to use the Internet and the World Wide Web.
G. The User may not rent or lease or provide the Services (including any software or documentation used by or with the service) to third parties.
H. The User may not modify, decompile, disassemble, reverse-engineer, or copy the ePublishing software code; the User may not create a derivative work from or display the ePublishing software code in human readable form; the User may not otherwise use the Services (which includes its software and documentation) except as explicitly provided for in this agreement.
4. EPUBLISHING ETIQUETTE AND PRIVACY
A. The network resources of ePublishing may not be used to impersonate another person or misrepresent authorization to act on behalf of others or ePublishing.
B. All Users shall not attempt to undermine the security or integrity of computing systems or networks of ePublishing and its Affiliates, or those accessed through or with their product, and must not attempt to gain unauthorized access.
C. All user-specific information provided by User in connection with Services shall be used to provide services and features to the User and to maintain the associated Web Sites. User-specific information provided by User in connection with third-party services (i.e., services not provided by ePublishing but by its Affiliates) through the ePublishing Web Sites shall be governed by the privacy policy and other terms of those third-party services.
D. You understand that Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. Users, and not ePublishing, are entirely responsible for all Content that Users upload, post, or otherwise transmit via the Web Site.
E. All Users agree not to use the Site to:
1. Upload, post, or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
2. Harm minors in any way;
3. Use ‘‘spam,’’ “blast-faxes,’’ or recorded telephone messages to market or sell Content;
4. Interfere with the operation of the Web Site via the use of viruses, programs, or technology designed to disrupt or damage software or hardware;
5. Employ a robot, spider, or other process or device to harvest e-mail addresses or other User information or to monitor the activity on the Web Site;
6. Transmit or post Content that violates the terms described in the section of this Agreement specifically dedicated to Content.
F. Transmission, storage, copying, or modifying any material, including material legally judged to be threatening or obscene, pornographic, profane, or material protected by trade secrets, copyright, or any other statute, or other actions by User in violation of any Federal, State, or Local regulation is prohibited.
G. ePublishing shall remove any and all material that it feels is inappropriate or illegal, offensive, or harmful in any respect. At ePublishing’s discretion, it shall remove content and/or ban Users who violate its policies from the Web Site.
5. AGE OF THE USER AND NATURE OF THE USE
A. The User certifies that he or she is a person at least 18 years of age.
B. The Services may not be used by any automated device or automated computational machine and may only be used or accessed through an electronic device under the manual control of User at all times.
6. COMPENSATION
A. For each sale of User’s Content for which we receive payment, ePublishing will pay User the royalty amount specified during the publication process. Royalties will be paid on a quarterly basis based on payments actually received by ePublishing for the User’s Content during the prior quarter. Such payments will be made within [#] days after the end of the prior quarter. In general, Lulu’s fee is generated on a per-transaction basis by taking [number%] of the transaction total.
B. During the publication process, Users are asked to specify the royalty they will receive for each piece of content they choose to make for sale. In order to calculate the [number%] margin, ePublishing will mark up this royalty amount by [number%]. The total cost of the royalty will include ePublishing’s mark-up. The minimum mark-up for ePublishing’s fee is [number amount of dollar(s) and/or cent(s)], but if you choose to make your content free, ePublishing waives its minimum altogether. Exceptions to the [number%] margin rule will be applied in the case of special offers or discounts to authors who purchase their own content in bulk.
C. If you have published and sold Content on the Site, the amount you are owed will be visible in your account under the ‘‘sales report’’ link that appears in your Store account information. No later than [number days] following the end of the quarter, ePublishing will make a good faith effort to pay you, using the contact information in our records.
D. If ePublishing owes you less than [number dollars] for Content sales within a given quarter, we reserve the right, at our discretion, to roll royalties forward to the following quarter until [number dollars] is reached.
E. If your account is inactive or terminated and we are unable to contact you using the contact information provided, we may also, at our discretion, charge a termination fee equal to the amount of unpaid royalties to cover administrative costs.
F. If your Content generates royalties of greater than $ 10.00 in a tax year, ePublishing will require you to provide taxpayer information as required by the IRS for the purpose of issuing a 1099 form for your earnings.
7. RETURNS
A. Content that has been purchased, whether in electronic or printed format, will be accepted for return only if it is damaged. Due to the nature of the print-on-demand manufacturing process, it is not economically feasible to accept returns on physical products. We cannot guarantee the quality of the digital Content itself hosted on ePublishing.com.
B. Because ePublishing provides an author-controlled publishing tool, the company cannot accept responsibility for the quality of the content purchased (including misspelled words, grammatical errors, etc.), its formatting, design, or overall appearance. The author approves the visual presentation and content of each item. Our staff does not monitor or check individual content prior to publication through our Web Site.
C. If you receive a book, CD, or electronic file that is damaged in some way (missing, torn, or loose pages in books, inoperable CDs, etc.), we will be happy to provide a replacement copy upon receiving a replacement request form by facsimile. Such forms are available under the Help section on ePublishing.com.
8. REPRESENTATIONS; LIMITED LIABILITY; INDEMNIFICATION
A. Each party represents to the other party (i) that it has the full power and authority to enter into and perform under this Agreement, (ii) the execution and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations, or rules, and (iii) this Agreement is a legal, valid, and binding obligation of the party executing this Agreement, enforceable in accordance with its terms and conditions.
B. By uploading Content to the Web Site you represent and warrant that the Content:
1. Is owned by you, or to the extent owned by someone else, that you have obtained that party’s permission to provide the Content to ePublishing for use, copying, and distribution under the license in this Agreement;
2. Does not violate any copyright, trademark, trade secret, or other intellectual property right;
3. Does not invade any individual’s right of privacy or publicity;
4. Does not contain material that is unlawful, obscene, defamatory, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory, or—deep breath—otherwise objectionable,
5. Does not include malicious code, which includes, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information;
6. Does not break the law, facilitate the breaking of the law, or violate any applicable regulation or ePublishing rule or policy;
7. Does not offer or disseminate fraudulent goods, services, schemes, or promotions or promote domain names, URLs, or hyper-links that constitute commercial content such as that found in advertising, promotions, or solicitations.
C. To the best of your knowledge, all purported factual information in the Content you upload is true and accurate, and the use of any recipe, formula, or instruction in the Content will not result in personal injury to any user. Users are prohibited from using ePublishing to impersonate another person or entity or to forge any e-mail communication or message. Despite all this, ePublishing cannot guarantee the accuracy, integrity, or quality of Content.
D. User shall defend, indemnify, save, and hold ePublishing and its employees, representatives, agents, clients, servants, affiliates, directors, officers, managers, and shareholders (the ‘‘Indemnified Parties’’) harmless from any and all demands, liabilities, damages, losses, costs, claims, or expenses (including without limitation, reasonable attorney’s fees and costs) (‘‘Liabilities’’) incurred in connection with any third-party claim, demand, or action (‘‘Claim’’) brought against any of the Indemnified Parties insofar as such Claim alleges facts or circumstances that would constitute a breach of any provision of this Agreement by you or your agents, employees, or assigns. If you are obligated to provide indemnification hereunder, ePublishing may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limitation of the foregoing, you will not settle, compromise, or in any other manner dispose of any Claim without the consent of ePublishing.
E. User shall defend, indemnify, and hold harmless ePublishing (including all Idemnified Parties) against any and all Liabilities caused directly or indirectly the User or any person who User allows to access the Services.
9. DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS
A. Under no circumstances, including negligence, shall ePublishing and the Indemnified Parties or anyone else involved in creating, producing, or distributing ePublishing’ Services be liable for any direct, indirect, incidental, special, or consequential damages that result from the use of or inability to use the ePublishing Services; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to ePublishing’ records, programs, or services. This paragraph shall apply to all content and functionality of ePublishing’s Services.
B. The third-party links, services, resources, and information that ePublishing provides or makes available through ePublishing.com and ePublishing’ other Web Sites are not controlled by ePublishing. Accordingly, ePublishing makes no warranties regarding such third-party services, resources, and information, including without limitation, warranties of fitness for a particular purpose, merchantability, and non-infringement and will not be liable for your use of or reliance on such third-party services, resources, or information.
C. Notwithstanding the above, User’s exclusive remedies for all damages, losses, and causes of actions whether in contract, tort including negligence or otherwise, shall not exceed the aggregate dollar amount which User paid directly to ePublishing during the current month.
D. Such limitations shall apply to ePublishing’ total liability, including without limitation any liability for damages caused or allegedly caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation of transmission, communications failure, theft of destruction of or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortious behavior, negligence, or under any other cause of action.
10. SERVICE RELIABILITY AND WARRANTIES
A. ePublishing Solutions makes no warranties of any kind, whether expressed or implied, for the Services.
B. User’s use of ePublishing’s Services are at User’s sole risk. Neither ePublishing, its employees, directors, affiliates, agents, third-party information providers, merchants licensers, or the like warrant that ePublishing’s Service will not be interrupted or error-free; nor does ePublishing make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through the ePublishing Services, unless otherwise expressly stated in this Agreement.
C. ePublishing also disclaims any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by the User, or viewers and users of User’s materials, including loss of data resulting from delays, non-deliveries, or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of ePublishing is at the User’s own risk, and ePublishing specifically denies any responsibility for the accuracy or quality of information obtained through its services.
D. Damages claims for unavailability of the Services against ePublishing are expressly limited to the pro rata portion of any monthly charge pre-paid by the User directly to ePublishing for the period of the system unavailability. ‘‘System unavailability’’ shall be narrowly defined as an unscheduled outage of more than [#] hours, but in no case shall include outages for maintenance, upgrade, or repair where Users are provided notice of such outages in advance via e-mail notice to their Services accounts.
E. Under no circumstances will ePublishing bear any responsibility for any damages arising as a consequence of such unavailability.
11. RESTRICTIONS ON USE OF CONTENT
If you purchase Content from the Web Site, you agree to the following restrictions with respect to each acquired Content and the information contained therein:
1. You may not resell the Content or otherwise profit from its use or display.
2. Sharing, copying, adapting, redistributing, reconfiguring, modifying, or creating derivative work from the Content is permissible only if explicitly designated in the permissions included with the Content at purchase. Any restrictions included with the Content must be observed.
3. The content owners who sell Content through ePublishing retain ownership of the copyrights or other licenses in the Content. You agree not to allow any other party to: resell, redistribute, sublicense, assign, delegate, or otherwise transfer this Agreement, the Content, any part thereof, or any related rights or obligations hereunder, to any third party.
4. Please do not remove or obscure any proprietary rights notices contained in or on the Content.
5. In the case of Content you purchase in the format of a printed book, notwithstanding the foregoing, you may resell a printed copy acquired by you.
12. TRADEMARKS AND COPYRIGHTS
A. ePublishing solely and exclusively owns all intellectual property and other rights, title, and interest in and to the ePublishing Services, which includes all software and documentation, both electronic or printed media, contain copyrighted material, trade secrets, patent pending material, and other proprietary intellectual property. The Services are the proprietary property of ePublishing Solutions. They are protected by copyright, trade secret, and patent laws, and other proprietary rights and laws, and they may only be used or accessed as specifically provided for in this Agreement.
B. ePublishing will have the sole and exclusive right to obtain trademark and copyright registrations, patents, and other protection therefor, and you will not acquire any right, title, or interest therein, under this Agreement or otherwise.
C. User owns all intellectual property and other rights, title, and interest in and to its Content, exclusive of any licensed Content incorporated into User’s Content under permission by any third-party licensor.
D. User warrants that its Content does not infringe any third-party copyrights, trademarks, or patents.
13. TERMINATION
A. This Service may be terminated by either party, without cause, by giving the other party [#] days’ written notice.
B. Notwithstanding the above, ePublishing may terminate Services at any time, without penalty and without notice, if the User fails to comply with any of the terms of this Agreement or the intellectual property protections applicable to these Services. ePublishing may also seek legal prosecution of any violations of law or this Agreement and the User agrees to personal jurisdiction by the Courts in the State of [State].
C. In its sole and absolute discretion, with or without notice to you, ePublishing may (i) suspend or terminate your use of the ePublishing Services or (ii) terminate your account with written notice of the reason for such termination if [#] days’ written notice is not provided.
D. Upon notice of termination of Services by ePublishing to User via contact e-mail to User’s Services account and contact e-mail account provided in User’s personal information, or voluntary termination of service by User, ePublishing has the right to delete all data, files, or other information that is stored in the User’s account for any reason.
E. When you choose to delete your Content from ePublishing.com, it will no longer be available or visible to other visitors. If your Content has never sold a copy or been used in a collaborative project, you can Delete it from your Store. The exceptions to your ability to remove Content are as follows:
1. Content that you have granted permission to other Users to incorporate into collaborative projects. If Content has been incorporated into another work for sale on ePublishing, then the derivative work remains available even when the original work is retired.
2. Content retained in our archives to the extent required by our data backup systems.
3. Content that has been sold or used in another project may still be Deleted, but that Content will continue to appear in your Store.
4. Content that you have made available to purchasers in electronic formats may also remain available on the Web Site (in purchasers’ Libraries) to Users who have purchased that Content.
14. NOTICES
All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (i) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, or (iv) electronic mail. If you give notice to ePublishing, you must use the address first set forth above or the following e-mail address: writtennotice@ePublishing.com. If ePublishing provides notice to you, ePublishing must use the contact information provided by you to ePublishing. All notices will be deemed received as follows: (i) if by hand delivery, on the date of delivery, (ii) if by delivery by U.S. mail, on the date of receipt appearing on the return receipt card, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iv) if by electronic mail, 24 hours after the message was sent, if no ‘‘system error’’ or other notice of non-delivery is generated.
15. MISCELLANEOUS
A. This Agreement will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of [State] without reference to conflict of law principles. Any action or proceeding to enforce this Agreement will be brought in the federal or state courts located in [County, State].
B. This Agreement will not be assignable or transferable by you.
C. This Agreement contains the entire understanding of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. ePublishing reserves all rights for changes and/or modifications to the Services and rates and will communicate these changes to the User within [#] days of their effect.
D. No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
E. You and ePublishing are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
F. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect.
G. The User takes full responsibility for all taxes and fees of any nature associated with Services used or products purchased.