TERM AND TERMINATION
This Agreement shall be effective as of the time frame set forth on the Invoice. This Agreement may be terminated by either party upon written notice to the other within thirty (30) days of receipt of the notice. This Agreement may be terminated by the Agency (i) immediately if the Client fails to pay any fees hereunder; or (ii) if the Client fails to cooperate with the Agency or hinders the Agency’s ability to perform the SEO Services hereunder. The Client shall pay all outstanding invoices and all other sums due to the Agency under this Agreement (or in respect of the relevant Services). In addition to its obligations to make payments under the express terms of this Agreement, if the Client arranges for a third party to provide the Services during the Notice Period, it shall pay the Agency a sum equivalent to the remuneration which the Agency would have received had the Agency provided the Services during that period.
entities and imprints, licensees, successors and assigns; “Contractors” refers to third party publishers, agencies, vendors, retailers, distribution channels, and suppliers with which We contract; and “You” and “Your” refers to the person or entity accepting this Agreement by signing below. The Agreement will continue in effect from the date it is first signed by You, until terminated as described below (“Term”).
By paying this Invoice, You engage Us to provide certain creative, publishing, and editorial services (“Publishing
Services”), marketing, and promotional services (“Marketing Services”), as well as book sale and distribution services (“Distribution”) [collectively referred to as the “Services”], with the objective of publishing, selling and/or distributing a book, in print, digital, video, and/or audio format (the “Work”). The specific Services purchased by You may be purchased individually or bundled into a “Purchasing Package,” and will be set forth in one or more separate “Service Orders.” This Agreement applies to and governs all Services provided by Us while this Agreement is in effect, as well as any acts incidental to the fulfillment of the Services or other responsibilities under this Agreement or applicable law.
1. RIGHTS AND LICENSES
The Work is made up of intellectual property that may fall into four categories: (1) Your Manuscript; (2) Our Work Product; (3) Our Property; and (4) Third Party Property.
Your Manuscript includes the text of the Work, in its original form as submitted by You and as edited by Us during the fulfillment of editorial Services purchased by You, and graphics or other materials, all owned or authorized in writing by the owners to be submitted by You to be incorporated into the Work. YOU (AND/ OR THE PERSONS YOU ARE EXCLUSIVELY AUTHORIZED TO REPRESENT IN THIS AGREEMENT) WILL REMAIN THE SOLE AND EXCLUSIVE OWNER(S) OF ALL RIGHT, TITLE, AND INTEREST, INCLUDING COPYRIGHT, IN AND TO YOUR MANUSCRIPT.
Our Work Product includes the book design, book cover design, graphics, Illustrations (as defined below), and other content that We or Our Contractors create in the process of fulfilling the Services (with the exception of the text of the Work). Our Property includes Our imprint logos, imprint names, trademarks, barcodes, and ISBN’s. We remain the sole and exclusive owner of all right, title and interest, including copyright, in and to Our Work Product and Our Property.
Third Party Property includes content that is owned by third parties that either We license, or You license or otherwise have permission to use in The Work. If Your use of Third Party Property is subject to any restrictions (such as a limit on the number of reproductions of an image), You are responsible to ensure that You comply with those restrictions. All right, title and interest in Third Party Property shall remain with the respective Third Party. Third Party Property licensed to Us may be used only in the versionof the Work (in any format) that We create, and may not be removed or used in any other versions of the Work or other products or materials.
During the Term of this Agreement and for the purpose of fulfilling the Services purchased by You and complying with Our obligations under this Agreement, with respect to Your Manuscript and Third Party Property licensed to You for use in the Work, You authorize, consent to and grant to Us and Our Contractors the following:
• The worldwide rights and license to display, exhibit, reproduce, digitize, modify, license, and otherwise use the information that You provide to Us about You (such as Your name or chosen pen name, image, likeness, appearance, voice, video footage, biographical and personal information, etc.) and information about the Work (such as the title, Your description of the Work, excerpts and images from the Work, etc.), in all materials created by Us or on Our behalf that incorporate any of the information above, in any format and in all media;
• The worldwide rights and license to send free review copies of the Work to members of media and other potential book reviewers or book sellers, in Our sole discretion;
• The worldwide rights and license to make excerpts or previews of the Work available for preview on websites or via other media, including the websites of certain retailers such as Amazon, Google, and Apple, in Our sole discretion;
• The exclusive, transferable, worldwide license to manufacture, store, use, display, execute, reproduce (in whole or in part), transmit, modify (for example, for formatting purposes or to create authorized derivative works), import, make, have made,offer to sell, print, publish, market, sublicense, distribute, and sell (individually or as part of compilations of collective works), and license for use via any subscription model or lending model, through all distribution channels available now or at a later time, in any language, in any format, and via any medium, now known or hereafter devised, selected in Our sole discretion and consistent with the Services You purchase, the Work;
• During the transition period of ninety (90) days after termination of this Agreement, the non-exclusive, worldwide license to engage in the activities set forth above; and
• The right and license to compile and use statistical information regarding sales of the Work.
After this Agreement is terminated, We grant to You a non-exclusive, worldwide license to manufacture, store, use, display, execute, reproduce, transmit, import, make, have made, offer to sell, print, publish, market, sublicense, distribute, and sell Our Work Product and Third Party Property provided by Us only as it exists in the version of the Work that was created by Us. The re-sale of copies of the Work purchased previously by You or a third party is not subject to the terms of this Agreement.
We grant to You a perpetual, non-exclusive, irrevocable, royalty-free, worldwide license to use, store, display, reproduce, transmit, sell, print, publish, market, distribute, sub-license, transfer, and make or have made derivative works, for any purpose whatsoever, the custom illustrations that We create pursuant to this Agreement (“Illustrations”).
2. FULFILLMENT OF SERVICES
Before We are required to begin fulfillment of the Services, You must submit to Us: (a) a fully completed Title Submission
Form or other forms requested by Us; (b) Your Manuscript; and (c) full payment for the Services. We are not responsible for the loss of or damage to Your Manuscript while in transit or while in Our possession. We are not obligated to preserve or return Your Manuscript or any other submitted materials to You.
Your Manuscript and Work must comply with Our Content Guidelines (set forth on our website and available upon
request) and all applicable laws and regulations. If You have questions regarding Your Manuscript or The Work’s compliance with applicable laws and regulations, such as copyright laws, rights of privacy and publicity, and libel/ defamation, You should consult an attorney for legal advice.
We reserve the right to conduct a content evaluation on Your Manuscript and The Work (“Content Evaluation”) solely and exclusively for Our internal purposes. You may not rely on the Content Evaluation, or any results We may share with You for any purpose whatsoever. If We have reason to believe that Your Manuscript or The Work does not comply with Our Content Guidelines, in Our sole discretion, We may require that You revise the Manuscript or Work in order to bring it into compliance, and We may remove The Work from distribution until such revisions are made. If You choose not make the necessary revisions to comply with Our Content Guidelines, You or We may terminate this Agreement.
You agree that We will determine the price at which to sell the various formats of The Work (“Suggested Retail Price”).
PLEASE NOTE THAT THE SUGGESTED RETAIL PRICE IS NOT NECESSARILY THE PRICE OF THE WORK TO THE END
CUSTOMER, WHICH IS SET BY THE RETAILER.
When We have created The Work, We will provide You with an electronic copy for Your complete and thorough review prior to publication. If, upon review, You are satisfied that each and every aspect of The Work is accurate, complete and meets Your expectations, and You acknowledge and accept the Suggested Retail Price, You will sign all requested forms to indicate Your final approval and return them to Us in a timely manner. After Your final approval is given, You waive any and all claims against Us or Our Contractors arising from or related to any alleged errors, omissions or other content or pricing issues discovered in The Work after final approval. You are responsible for the Fees for any subsequent changes, corrections or other Services requested by You after final approval.
Upon final approval of the Work, We will make the Work available through Our website and Our Contractors, consistent with the Services purchased by You. The Work may be sold individually in any format, or may be distributed in one or more of the following models: (i) divided with only certain portions of the Work sold; (ii) combined, in whole or part, with other works and sold as part of a bundle; (iii) combined, in whole or in part, with other works and sold as part of a subscription service; or (iv) combined, in whole or in part, and sold as part of a lending service. We do not warrant that any particular Contractor will offer the Work for sale, as this is up to the sole discretion of the Contractor, or that We will continue to use any particular Contractor. If We receive a complaint from You or a third party regarding the Work, We may discontinue the distribution of the Work while We resolve the complaint.
You are responsible for the payment of shipping and handling fees applicable to the shipment of copies of the Work to You, whether included with the Service(s) or Publishing Package, provided free-of-charge, or otherwise purchased by You from Us.
Royalties will be paid to You on all sales of the Work, EXCEPT: (a) sales of used copies of the Work; (b) sales of the Work to Yourself; and (c) copies of the Work given to any person or entity free of charge. You will receive the following Royalties:
Fifty percent (50%) of the difference of the Suggested Retail Price less promotional discounts, distribution discounts and sales taxes, for each sale of the individual Work in digital format through any distribution channel
One hundred (100%) of any physical copies sold through our channels, website,. or storefront.
We may accrue and withhold payment until the total amount of Royalties earned equals or exceeds seventy-five dollars ($75). All held Royalties will be paid in full within ninety (90) after the end of each calendar year.
Royalty payments may be reduced by any outstanding amounts You owe to Us, and are subject to garnishment. We
reserve the right to determine or change the method of payment, in our sole discretion. Royalties may be subject to applicable tax requirements and withholding. You will be solely responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity.
In order to determine the appropriate amount of withholding, if any, You will provide Us with all necessary information and documentation requested by Us. If You fail to provide Us with the proper documentation and information, We will withhold those amounts required to be withheld in compliance with the tax code or other governing laws and regulations, and will remit these amount to the appropriate government agency. You have no right to seek reimbursement from Us for such withholdings.
You are responsible for supplying and maintaining with Us complete and current personal information, including, but not limited to, Your name, address, telephone number, email address, bank information, and tax information. We are not liable for any damages related to delays or failure to receive notices, tax documents, Royalty payments or other information resulting from Your failure to maintain accurate current and complete personal information with Us. We reserve the right to place a hold on payment of Royalties if a check is returned because the mailing address You have provided Us is no longer accurate or an electronic payment is rejected because the bank information You have provided Us is no longer valid. We will continue to hold the Royalties until You provide Us with accurate address and bank account information.
4. TERMINATION & REFUNDS
Either Party may terminate this Agreement at any time, with or without cause, with written notice to the other Party. When this Agreement is terminated, We will notify and demand that all of Our Contractors (such as Amazon, Google and Apple) cease the production, sale and distribution of new copies of the Work. However, We cannot control the actions or omissions of Our Contractors, or when they choose to comply with Our request. Even after Contractors stop selling the Work, previews and excerpts may be seen on the internet in perpetuity, long after termination. We will not be liable to You for copyright infringement, or in any other way, for the failure of a retailer or Contractor to cease the production, sale and distribution of the Work to remove an excerpt or preview of the Work
after this Agreement is terminated, provided that We have given notice of the requested change to such Contractor. You will remain liable for payment of the balance due, subject to the Refund provisions below
If You terminate the Agreement, or if We terminate the Agreement for Cause (as defined below) at any time or without
After submission of Your Manuscript but before design work begins: 50% of purchase price
After design work begins but prior to final approval: 25% of purchase price
o After You have given final approval of the Work:
o NOTE: Submission of Your Manuscript occurs when You first deliver to Us any text or images intended for
• For individual Services (not included as part of a Publishing Package):
o Prior the beginning of fulfillment of individual Service(s):
0-90 calendar days after the purchase: 100% of purchase price, less $150 or 10% of the purchase price,
whichever is greater
More than 90 calendar days after the purchase: No Refund
o After We begin fulfillment of individual Service(s):
o NOTE: Fulfillment of a Service occurs either when You return the author questionnaire, whether or not completed
fully or correctly, or when We or a Contractor begin work on the Service, whichever occurs first.
If We terminate the Agreement without Cause at any time prior to fulfilling the Publishing Services and Marketing Services, We will
Refund 100% of the purchase price. “Cause” means (a) You behave in an abusive or uncivil manner toward Us or Our Contractors; (b)
Your Manuscript or Your Work fails to comply with the Content Guidelines or applicable laws, at any time; or (c) We receive a formal or
informal allegation, complaint, demand or Action in any form made by a third party relating to You, Your Work or Your Royalties.
If at any time, We terminate this Agreement because Your Manuscript or Your Work do not comply with our Content Guidelines, in
Our sole discretion, We will refund 100% of the purchase price, less a Content Evaluation processing fee of $400.
If, after termination of this Agreement, You request in writing an electronic file(s) of the Work, We will send the PDF file(s) within 30
days, with Our Property removed.
5. REPRESENTATIONS AND WARRANTIES
You represent and warrant the following:
• You are either the sole author and sole owner of all copyrights, or You are exclusively authorized in writing to represent all coauthors
owning all copyrights to Your Manuscript, or Your Manuscript is a work for hire and You own all copyrights in it;
• You are either the owner of or You have secured permission to use any Third Party Property that You give to Us to include in
the Work, and You can provide proof if such permission if requested;
• Your Manuscript and the Work complies with all Content Guidelines and applicable laws and regulations; and You understand
that You are solely responsible for ensuring that the Work complies with Our Content Guidelines and all applicable laws and
regulations at all times;
• Your Manuscript and the Work do not: (i) infringe on any copyright or other intellectual property rights; (ii) violate any right of
privacy, publicity or other personal or property right whatsoever; (iii) contain any libelous matter or matter otherwise contrary to
law; (iv) contain a recipe, formula, or instruction that may be injurious to the user; or (v) contain any information of a third
party deemed private by applicable law (such as social security numbers, dates of birth, or private financial or medical
• All statements in Your Manuscript or the Work asserted as facts are based on Your careful investigation and research for
• There have not been and are not now any pending or, to Your knowledge, threatened claims, litigation, or other proceedings
pending against You with respect to the content or title of Your Manuscript or the Work or other claims based on any facts that
would constitute a breach of any of Your representations and warranties;
• All information in Your Manuscript or that You submit or communicate to Us is accurate; and You will immediately notify Us to
update and/or correct any information which becomes inaccurate.
6. DISCLAIMER OF WARRANTIES
SALES ARE NOT GUARANTEED. WE CANNOT CONTROL THE SUBJECTIVE PURCHASING DECISIONS OF
CONSUMERS OR BOOKSELLERS. WE CANNOT AND DO NOT GUARANTEE SALES OF THE WORK. WE MAKE NO
GUARANTEES OR PROMISES AS TO THE MINIMUM SUCCESS OF THE SERVICES OR THE AMOUNT OF BOOK SALES WHICH
MAY RESULT FROM ANY OR ALL OF THE SERVICES.
GENERAL DISCLAIMER OF WARRANTIES.
EXCEPT FOR ANY WARRANTIES OR REPRESENTATIONS EXPLICITLY
SET FORTH IN THIS AGREEMENT, WE MAKE NO OTHER WARRANTY, AND EXPLICITLY DISCLAIM ALL OTHER WARRANTIES,
CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE
OF PERFORMANCE OR DEALING, CUSTOM OR USAGE IN THE TRADE, OR OTHERWISE) WITH RESPECT TO THE SERVICES,
OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE, WHETHER
OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH
PURPOSE), WARRANTY OF TITLE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A
7. WAIVER OF CLAIMS; INDEMNIFICATION
To the fullest extent permitted by applicable law, You hereby release, waive, discharge and covenant not to sue Us and Our Contractors for any liability to You, Your personal representatives, assigns, heirs, or successors in interest, or for any loss, damage or expenses, or any claims, demands or Actions therefore, arising from or related to, directly or indirectly, Our or Our Contractors’ use of the rights and licenses granted in this Agreement to fulfill the Services and other obligations under this Agreement, including, but not limited to, claims for copyright or trademark infringement, infringement of moral rights, defamation, invasion of rights of privacy, rights of publicity, intrusion, false light, public disclosure of private facts, physical or emotional injury or distress or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world. For purposes of this Agreement, “Actions” include any litigation, lawsuit or administrative, governmental or other proceeding including, but not limited
to, government investigations, inquiries, hearings, and other requests, or any appeal thereof.
You acknowledge that You are solely and fully responsible for the content of the Manuscript and the Work and that We will not be liable to You, or to any third party or other person or entity for the content of Your Manuscript or the Work, regardless of whether We had any knowledge or could have reasonably known of any violation of Your above representations or that the Work or Manuscript otherwise violates law.
You will fully indemnify and hold harmless, Us and Our Contractors, and each such entity’s officers, directors, employees, agents, insurers, contractors, successors, and permitted assigns from and against any claim, cause of action, demand, Action, proceeding, losses, liability, cost, expense (including reasonable attorneys’ fees) or damages arising out of or resulting from a breach of contract, including, but not limited to, any breach or alleged breach of any of Your foregoing representations, warranties, and obligations. Until any claim for indemnity hereunder has been fully satisfied, We may retain all payments due You, including Royalties, if any, and/or We may cease providing any further Services; and You will have no right to receive a Refund of any amounts paid by You
Social Media Management
a) In performing Social Media Services (SMS) the agency shall develop a plan intended to improve the visibility of the clients business profile on the selected social media sites.
b) The client acknowledges that the Social Media Services will require the client to enable the agency to make posts on the clients behalf across the social media sites included with the service in order to influence the visibility and ranking of the clients profile.
c) The client shall be responsible for providing the agency with the necessary login details to make posts and also for providing copy and/or information necessary for the agency to ensure posts are fully effective.
d) The client retains full responsilbilty for maintaining their social media profile and all links and content contained therein.
ADDITIONAL TERMS AND CONDITIONS RELATING TO PAID SEARCH MARKETING SERVICES
Where the Client appoints the Agency to supply paid search marketing services (“PSM Services”), the terms of this Annex A shall apply.
The Services In performing the PSM services, the Agency shall:
proactively manage, monitor, track and measure search engine marketing programs and promote the marketing of the Client’s products and/or services (“Products”) on the Website(s) (and all successor or replacement sites thereto);
manage the relationships with and payments to the owners, operators and/or administrators of the relevant search engines or directories (“Search Partners”);
manage bid price, listing terms, monthly spend, adding and deleting listings, creating new listings and changing bid amounts;
provide, monitor and maintain the necessary technology applications required to link the Website(s) to Search Partners; and
track and report certain metrics including number of clicks, sales conversion data and ROI measurements and, if applicable to the Agency’s fees, track and report the nature and volume of all relevant actions as identified in the MSA by Qualified Customers (as defined below).
Payment for PSM Services (a) The fees set out in the Service Agreement are exclusive of any application program interface (“API”) access or similar fees that a Search Partner may charge to the Agency in connection with the Client’s search marketing program. The Agency reserves the right to charge the Client (and the Client agrees to pay) the amount of such fees. Where such Search Partners assess a specific cost-per-click charge, that cost will be billed to the Client by the Agency. In instances where a Search Partner charges the Agency a flat fee for API access, the Agency shall pass all such API fees along to its PSM clients on a pro-rata basis. For purposes of clarification, in such instances, the Agency shall use commercially reasonable efforts to determine the approximate effective API cost on a per-click basis for all applicable clients. Each such client shall then be charged its proportionate share of the API expense. (b) A “Qualified Customer” shall mean any individual or entity that (i) places an order for Products from the Website(s) within sixty (60) days of clicking through to the Website(s) via hyperlinks contained within the Client’s keywords, titles and descriptions, listings, content, data and data feeds relating to the Client’s Products keywords, titles and descriptions, listings, content, data and data feeds relating to the Client’s Products (“Offers”) as displayed with any Search Partner or via any other promotional placement provided by the Agency or (ii) completes and submits Client’s registration form within sixty (60) days of clicking through to the Website(s) via hyperlinks contained within Client’s Offer as displayed with any Search Partner or via any other promotional placement provided by the Agency. “Monthly Sales” shall mean the net Euro amount of Products ordered by Qualified Customers during a calendar month. Monthly Sales shall be calculated exclusive of fraudulently placed orders identified in writing by Client within five (5) days after the date of the fraudulently placed order, transportation and packaging costs, insurance, and taxes.
Responsibilities of Client
The Client shall be solely responsible for monitoring, operating, maintaining and managing the content of the Website(s). The Client will ensure that navigation back to the originating Search Partner web page, whether through a particular pointer or link, the “back” button on an Internet browser, the closing of an active window, or any other return mechanism, shall not be interrupted by the Client through the use of any intermediate screen or other device not specifically requested by the user, including without limitation through the use of any html popup window or any other similar device.
The Client shall be solely responsible for providing and/or approving relevant and appropriate offers so that the Agency can seek to manage and optimize search engine placement of the Offers. The Client agrees and acknowledges that a Search Partner may, in its sole discretion, refuse to display or continue to display any of the Client’s Offers and that neither the Agency nor any Search Partner shall be liable such refusal.
The Client shall be solely responsible for all aspects of the relationship with all persons and/or entities that purchase Products or submit a registration, as the case may be, including without limitation:
establishing all prices for Products;
accepting, processing and fulfilling orders for Products;
collecting payment, including all taxes or other charges due, from Qualified Customers;
managing returned Products and cancellations;
ensuring that the sale of all Products is made in conformance with all applicable laws (including export control laws);
determining all customer service, warranty and/or operational policies;
accepting and processing registrations;
satisfying all commitments or obligations resulting from each completed registration;
ensuring that each registration, and the information collected in processing each registration, is acquired and used in conformance with all applicable laws.
The Client shall provide the Agency with sales and marketing information applicable to the Products as is available from time to time in order to assist the Agency in establishing relationships with Search Partners.
The Client shall provide its reasonable cooperation with respect to efforts made by the Agency to: (i) improve the tracking and reporting of relevant information including but not limited to the number of clicks and sales conversion data and/or purchases made or registrations submitted by Qualified Customers and (ii) implement and test the technology applications used to link the Website(s) to Search Partners. The Agency shall provide the Client with a one-by-one (1×1) clear pixel (the “Image Tag”) to allow for tracking by the Agency. The Client will not take any action with respect to this Image Tag that would interfere with the Agency’s ability to carry out its activities under this Agreement and will provide reasonable advance notice to the Agency of any action reasonably expected to have such effect. If the Agency’s remuneration is based upon actions of Qualified Customers, should the Client modify, alter, delete, disable, fail to serve or take any other action with regard to the Image Tags provided to the Client by the Agency, the Client agrees to pay to the Agency for each day, or pro-rata portion of any day, during which the Agency’s ability to track such data is hindered, the average Euro amount of remuneration earned by the Agency and Search Partners per day during the seven (7) day period immediately preceding the period of time during which the Agency’s tracking ability was hindered.
The Client shall protect any passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to the Client that are used to access the Agency’s online program management and reporting tools. In the event that the Client makes such Passwords available to any third party, the Client shall (i) obligate each such third party to execute a written confidentiality agreement that binds that third party to confidentiality obligations consistent with those imposed upon the Client hereunder; and (ii) be liable for all actions taken by such third party in connection with or related to that third party’s access to the Agency’s online program management and reporting tools. Except as specifically set forth in this Agreement, the Client shall not disclose or make available the Client’s Passwords other than to the Client’s authorised employees.