BookSurge Author Publishing Agreement

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Publishing Agreement

This Publishing Agreement (the "Agreement") contains the complete terms and conditions that apply to your use of the BookSurge Services (the "Services"), described at http://www.booksurge.com and any web pages to which such site links, including but not limited to www.booksurgepages.com and www.gubookstore.com (together with any successor or replacement web sites and pages, collectively the "Site"). As used in this Agreement, "we" and "BookSurge" mean On-Demand Publishing LLC, (an Amazon.com Inc. company) d/b/a BookSurge, and "you" means the person or entity accepting this Agreement. In order to use the Services you must:

agree to the terms and conditions in this Agreement by clicking the "I agree" button at the bottom of this page;
have registered for an account at the Site by providing your first and last name, valid e-mail address and any other required information to us;
have access to the Internet; and
be able to lawfully enter into contracts (for example, minors are not allowed to register and use the Services).

1. Amendment; Notice of Changes.

We reserve the right to change the terms and conditions contained in this Agreement or any policies, guidelines or other Service-specific terms and conditions governing the Services, including without limitation, any of the information posted on the Content Policy, Submission Guidelines (as defined below), Price List and Privacy Notice pages, at any time and in our sole discretion. Any changes to the Site, including Service-specific terms and conditions, or policies and guidelines referenced in this Agreement, will be effective upon posting such revisions on the Site and without notice to you. We will, however, post a notice of any changes to this Agreement on the Site for thirty (30) days after the changes are effective. You are responsible for regularly reviewing the Site for changes and notice of changes. YOUR CONTINUED USE OF THE SITE AND THE SERVICES FOLLOWING OUR POSTING OF ANY CHANGES TO THE AGREEMENT ON THE SITE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT OR THE SITE, DO NOT CONTINUE TO USE THE SERVICES OR THE SITE.

2. Delivery of Content.

2.1 Content Requirements. Once your account has been properly set up on our Site and you have accepted the terms of this Agreement, you may submit distinct and separately saleable written works (each, a "Title") in accordance with our Submission Specifications and the procedures outlined in our Global Publishing System ("GPS") and other procedural documents we provide to you (collectively, the "Submission Guidelines"), and choose which Services you would like to use. Before we can print and distribute your Book, you must deliver copies of your Titles, along with all available data and images relevant to a Title (for example, the Title name, description, trim size and any images of the Title) (collectively, "Metadata") (the Metadata and the Titles together, the "Content") to us for Titles you have submitted.

2.2 Content Delivery. For each Title you submit and deliver to us, you will deliver Content to us in accordance with our Submission Guidelines, which we may update from time to time. We will not return any of your Content to you.

2.3 Applicable Policies and Guidelines. You agree to abide by, and all Content you provide to us under this Agreement will comply with, the procedures, policies, guidelines and other Service-specific terms and conditions on the Site, including without limitation the Content Policy and Submission Guidelines, which explain the processes and set out acceptable conduct and prohibited practices for use of the Services. In addition, you agree to the Payment Terms. You should refer regularly to the Submission Guidelines and Content Policy pages to understand the current procedures and guidelines for use of the Services and to be sure that your Titles are eligible for listing via the Services.

3. Services.

3.1 Production and Sale of Books. Once you are registered on the Site, have accepted the terms of this Agreement, delivered Content to us and paid us any applicable fees, you are eligible for our Services, which may include the listing of your Titles on the Amazon Properties and other channels, the manufacture of Books (as defined in Section 4.2) and the fulfillment of Book orders, all of which we will perform subject to the terms of this Agreement and your compliance with this Agreement and all related Service-specific terms and conditions, procedures, policies, and guidelines, including without limitation the Submission Guidelines and Content Policy. The "Amazon Properties" include our affiliate's website, the primary home page of which is identified by the URL www.amazon.com (and any successor or replacement website), and any other websites maintained by or for us or our affiliates targeted at customers in the United States (collectively, the "Amazon Site"), along with any other website or other online point of presence on any platform through which any products or services available on or through the Amazon Site are described, syndicated, offered, merchandised or advertised.

3.2 Ordering Your Own Books. You may order copies of your own Book from us, and if you do so, we will ship the copies to the address specified by you. Title to such Books will pass to you when we place the Books with the carrier for shipment.

3.3 Preprinted Inventory. Once your Title is ready for printing and distribution, we or our affiliate will have the right to preprint inventory of Books.

3.4 Ancillary Services. In addition to manufacturing your Book, we offer certain ancillary Services, which are described on the Site, including certain Promotional Tools. Some of our ancillary Services may have additional terms and conditions that apply only to those Services. Using Services that have additional terms and conditions constitutes your agreement to those terms and conditions.

4. Titles.

4.1 Content Rejection and Removal. We may, in our sole discretion and at any time, (a) reject Content; and (b) refuse to list, or remove, any Title from any Amazon Property or other sales channel. You will remain liable for all fees and other amounts that you may owe under this Agreement in connection with any Title we remove because of a violation of this Agreement, our Content Policy or the Submission Guidelines.

4.2 Pricing; Legal Title. We or our affiliate will be the seller of record for each physical product of your Title (each, a "Book") we or our affiliate sells to a customer (each, a "Customer") through any Amazon Property. We or our affiliate will have sole discretion in setting the selling price to Customers for all Titles made available for sale on the Amazon Properties. You will provide a List Price for each Title, which will be at or below (a) the price at which you list or offer that title via any other sales channel; and (b) the price at which you sell such Title in printed form to customers through any distribution method. For the purpose of this Agreement, "List Price" means the list price that you submit to us per individual Title.

4.3 Customer Returns. We will determine how to handle Customer returns of Books, which may include, without limitation (a) placing the returned copy of the Book into inventory and reselling it to another Customer, in which case we will have no obligation to pay you any Royalty for the resale of such Book (because we paid you a Royalty when we manufactured such Book); or (b) destroying the Book and calculating amounts due to you net of the Royalty we previously paid for the destroyed returned Book.

5. Fees; Taxes.

5.1 Fees. You will pay us all applicable fees, as specified in our Price List. Please note that some fees may be nonrefundable.

5.2 Royalties. You must complete and send in a Royalty Information Form before we will be able to pay you Royalties. Provided that you have sent us a completed Royalty Information Form, for each Book we manufacture (regardless of whether or when it is sold), we will pay you the applicable Royalty based on the List Price of the Book within 35 days after the end of the month in which the Book was manufactured. We will not, however, pay you any Royalties until the total Royalties we owe you amount to at least (a) $10 if we pay you by direct deposit; and (b) $25 if we pay you by check. If you have amounts payable hereunder upon the termination of this Agreement, then we may set off such amounts against any payment then payable to you, or you will immediately pay any such amounts.

5.3 Taxes.

5.3.1 Payments to You. For the purposes of this paragraph, the term "Transaction Taxes" means sales/use, value added, or transaction taxes and other charges such as duties, customs and government imposed surcharges. You will be responsible for determining taxes you owe on payments you receive under this Agreement. To the extent payments to you are subject to any Transaction Taxes, (a) payment includes all applicable Transaction Taxes, and (b) you may supply us with a valid tax invoice separately stating such Transaction Taxes. In return, we will provide you with any applicable exemption certificate acceptable to the relevant taxing authority that we possess, in which case you will not collect the Transaction Taxes covered by such certificate. If any other taxes (for example, international withholding taxes) are required to be withheld on any payment, we will deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority.

5.3.2 Your Payments to Us. All fees payable by you to us pursuant to this Agreement exclude Transaction Taxes. In addition to amounts owed by you pursuant to this Agreement, you will pay us any Transaction Taxes we are required to collect on such fees. If we charge you Transaction Taxes, you may provide us with a valid exemption certificate acceptable to the relevant taxing authority, in which case we will not collect the Transaction Taxes covered by such certificate. All fees payable by you to us under this Agreement will be made without setoff and without deduction or withholding for, or on account of, any present or future tax.

6. Licenses; Ownership.

6.1 Grant of Rights. Subject to the terms of this Agreement (including but not limited to Section 6.2), you grant to us a nonexclusive license, during the term of this Agreement, to (a) create a digitized version of the Content that we will use to create a Book (each, a "Source File"); (b) print, publish, distribute and sell your Content through the Amazon Properties and other channels in the form of Books; and (c) distribute, display, transmit, perform and use the Content for promotional purposes in connection with the Books or the Services. You further grant to us those rights necessary to technically effectuate the rights granted to us herein, including the right to reproduce, store and adapt the Content. In addition, you agree that we and our affiliates may include your Titles in the Search Inside!^TM program, which enables visitors to view, search and "page browse" through your Titles. Accordingly, for each of your Titles you hereby grant us permission, on a nonexclusive, perpetual basis, to (x) reproduce and store the entirety of each Title in digital form on one or more computer facilities of or under our, our affiliates' or our independent contractors' control, and (y) to display portions of each Title on the Amazon Properties so that a user will be able to (i) use queries to locate, select and display excerpts that include the search terms for every occurrence of the search terms; and (ii) view a limited number of pages within a Title during any single session.

6.2 Metadata; Preprinted Inventory; Sublicensing. We may broadly integrate the Metadata into the Amazon Properties, and they may appear in several places on the Amazon Properties. By way of example and not limitation, the Metadata may appear on product detail pages, in search results, in customer browsing and buying history, and in routine, automated and community-driven or behavior-driven merchandising features such as recommendations and "Listmania." Our use of the Metadata may become integral to the Amazon Properties throughout the term of this Agreement and will continue beyond the term of this Agreement even though we will no longer produce new Books after the term of this Agreement. In addition, we need the right to sell any preprinted inventory. Therefore, notwithstanding anything to the contrary herein, (a) for Metadata, the license you grant us in Section 6.1(c) will be perpetual and royalty-free; and (b) for preprinted inventory of your Books, you grant us the right to distribute and sell your Content through the Amazon Properties and other channels in the form of Books until we have sold all Books that we printed during the term of this Agreement. We may sublicense the rights granted to us hereunder to our affiliates and to any third party designated or engaged by us and acting on our behalf for purposes of fulfilling our obligations or exercising our rights under this Agreement (including in connection with sales through the Amazon Properties and other sales channels).

6.3 Ownership. Subject to the licenses set forth in this Section 6 and the following sentence, and as between the parties, you own all right, title and interest in and to the Content, including all patent, copyright, trademark, service mark, mask work, trade secret and other intellectual property and proprietary rights (collectively, "Intellectual Property Rights") therein. Subject to your underlying rights in the Content, as between the parties, we will own all right, title and interest in and to the materials created, provided or used by us in the fulfillment of obligations in this Agreement (including Source Files), including all Intellectual Property Rights therein.

6.4 Cover Images. We may agree to provide to you a file containing an image of the cover of your Book ("Cover Image"). Contingent upon your receipt of such Cover Image, we hereby grant you, during the term of this Agreement, a worldwide, royalty-free right to use the Cover Image for any lawful purpose related to promoting your Book.

6.5 Feedback. Any feedback, ideas, modifications, suggestions, improvements and the like made by you with respect to the Services, the Site, anything on the Site (including current or future features), or any beta program we are running ("Feedback") will be our property. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback and the related Intellectual Property Rights to us and agree to assist us, at our expense, in perfecting and enforcing such rights. We may disclose or use Feedback for any purposes whatsoever without any obligation (including any financial obligation) to you. In addition, if you are participating in a beta program, you agree to provide us with any reports we request and to promptly respond to any and all reasonable inquiries, questionnaires, surveys and other test documents we submit to you.

7. Representations and Warranties. You represent and warrant that (a) you will comply with all laws, rules, regulations and orders of any governmental authority having jurisdiction over your performance hereunder; (b) you are the sole author of the Titles, or the Titles are in the public domain; and you have all requisite right, power and authority to enter into this Agreement and perform your obligations hereunder; (c) you are granting us the rights, licenses and authorizations you grant hereunder free and clear of any encumbrances, and this Agreement does not violate or conflict with any other arrangements, understandings or agreements between you and any third party; (d) you own, or have obtained, all rights and permissions to grant the licenses you grant hereunder that are necessary for us to exercise the rights granted under this Agreement; (e) the Content (and our use thereof) is not defamatory, libelous, obscene, or otherwise illegal, does not invade any right of privacy, and does not infringe upon any Intellectual Property Right or right of publicity of any person or entity; and any recipe, formula, or instruction contained in the Content is accurate and is not injurious to the user; (f) all Metadata is accurate; and (g) the Content complies with all aspects of the Content Policy, as such may be updated from time to time.

8. Indemnification; Maintenance of Rights.

8.1 Indemnification. You will indemnify, defend and hold harmless us and our affiliates (and the respective employees, directors and representatives of each), any operator of an Amazon Property and any third party we allow to sell the Books from and against any and all third party claims, judgments, damages and expenses (including without limitation reasonable attorneys' fees) ("Claims") arising out of any breach or alleged breach by you of this Agreement, including without limitation any Service-specific terms and conditions, the Submission Guidelines and Content Policy pages and the Privacy Notice. You agree not to settle any Claim without our prior written consent.

8.2 Maintenance of Rights. You will not do anything to intentionally prejudice the rights granted hereunder, but in the event that you lose any rights or other licenses, consents or permissions relating to a specific Title that are necessary for you to grant the rights granted to us hereunder, or you receive notice of a third-party claim relating to a Title which you reasonably deem to be of concern, you will immediately remove such Title from our Services, but for the avoidance of doubt, your Content may remain listed and displayed on the Amazon Properties in accordance with Section 6.2 above. Without limiting our rights or remedies under this Agreement, you will reimburse us for any refunds we make to Customers as a result of the withdrawal of a Title under this Section. For the avoidance of doubt, nothing in this Section 8.2 is intended to relieve you of your indemnification obligations set forth in Section 8.1 above.

8.3 Copyright Infringement. You agree that we have the right to commence action for copyright infringement based on the rights granted hereunder.

9. DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY. THE SERVICES AND THE BOOKS ARE PROVIDED "AS IS." WE AND OUR AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT; (B) THAT THE SERVICES, THE SITE, OR THE AMAZON PROPERTIES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, OR SECURE, OR WILL OPERATE WITHOUT ERROR; AND (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL SUCH WARRANTIES. WE AND OUR AFFILIATES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE AMAZON PROPERTIES, THE SERVICES, THE INABILITY TO USE THE SERVICES, ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT (WHETHER OR NOT ARISING FROM OUR NEGLIGENCE), OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT WE MAKE NO PROMISE OR ASSURANCE THAT WE WILL SELL ANY BOOKS UNDER THIS AGREEMENT.

10. Termination. You may terminate this Agreement at any time by giving notice to us at this e-mail address, and such termination will be effective five business days after we receive your notice. We may terminate this Agreement at any time by giving notice to you, which may be via e-mail to the e-mail address you provided us upon registration for the Services, and such termination will be effective at the time we send you the notice. We may fulfill any Customer orders pending as of the date of termination.

11. Password Security. Your password for the Site may be used only to access the Site, use the Services, electronically submit your Titles, and review any reports, records, or other features we make available to you. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on the Site. If your password is compromised, you will change your password.

12. Privacy. Read the www.booksurge.com privacy notice (the "Privacy Notice"). The Privacy Notice may be changed by us in the future. You should check the Privacy Notice frequently for changes.

13. Governing Law; Jurisdiction; Venue. This Agreement will be governed by the laws of the State of Washington , without reference to its conflicts of law rules. Any dispute relating in any way to your use of the Services or to this Agreement will be submitted to confidential arbitration in Seattle, Washington, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Washington, and you consent to exclusive jurisdiction and venue in such courts. Arbitration under this Agreement will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

14. Miscellaneous. You may not assign any of your rights or obligations under this Agreement. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the party's rights to subsequently enforce the provision. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable. The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity. Nothing in this Agreement will act to restrict or otherwise limit any rights we may have in connection with the Content, or portions thereof, as provided under applicable law, any other permission from you, or a valid license. Sections 4, 5, 6.1, 6.2, 6.3, 6.5, 7, 8, 9, 10, 13 and 14 will survive termination of this Agreement.

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