eBook Publication and Distribution Agreement - PubIt!

Last Modified:  November 6, 2012. The Privacy Policy referenced herein is effective as of November 1, 2012 ("Effective Date").

 

Please note, each Agreement (as defined below) in effect as of July 3, 2012 has been assigned from Barnes & Noble, Inc. to barnesandnoble.com llc, and barnesandnoble.com llc agrees that it shall be bound by all of the terms and conditions hereof.  This statement serves as notice to you as set forth in Section XV below.

 

This eBook Publication and Distribution Agreement is made as part of an online application (the "Application") for participation in PubIt!™, a digital self-publishing and retail distribution platform (the "Service") from barnesandnoble.com llc (hereinafter referred to as "Barnes & Noble, "we" or "us") and includes, in addition to the terms set forth below, the Pricing and Payment Terms , the Content Policy , all rules and policies for using the Service provided on the Barnesandnoble.com website (the "Service Policies" ), the Barnesandnoble.com website Terms of Use , and the Barnesandnoble.com Privacy Notice located at http://www.barnesandnoble.com/help/cds2.asp?PID=8104  (collectively, this "Agreement").

This Agreement contains the complete terms and conditions that apply to your use of the Service and your distribution of digital content including but not limited to the eBook file, product description, and cover art through the Service (all such content, "eBooks"). This Agreement is a binding agreement between Barnes & Noble and the individual or entity identified as the Content Provider in the Application ("you" or "Content Provider"). As used in this Agreement, "affiliates" means any entity that directly or indirectly controls, is controlled by, or is under common control with Barnes & Noble, and "Barnes & Noble party" means, individually, Barnesandnoble.com llc. and each Barnes & Noble affiliate that joins as a party to this Agreement as provided in Section XV. If the Content Provider is an entity, the individual person who accepts this Agreement for Content Provider hereby represents and warrants that he or she is entitled to enter this Agreement as an authorized representative of Content Provider and to bind Content Provider to the terms of this Agreement.

I.  Agreement Acceptance

II.            Term and Termination

III.          Account Eligibility and Registration

IV.          eBook Delivery, Acceptance, and Withdrawal

V.            Pricing

VI.          Payments

VII.        Grant of Rights

VIII.      Security/DRM

IX.          Rights Clearances

X.            Representations, Warranties, and Indemnities

XI.          Ownership of Service/Feedback

XII.        Confidentiality

XIII.      Limitation of Liability

XIV.      Amendments to Agreement

XV.        Miscellaneous

THE TERMS OF THIS AGREEMENT ARE IMPORTANT AND WE ENCOURAGE YOU TO REVIEW THEM CAREFULLY BEFORE PROCEEDING WITH YOUR USE OF THE SERVICE.

I. Agreement Acceptance.

You accept this Agreement and agree to be bound by its terms by either (a) clicking agree or accept where you're given the option to do so or (b) by using the Service, or any part of it. If you do not accept the terms, you may not use the Service.

II. Term and Termination.

The term of this Agreement will begin upon your acceptance of it and will continue until it is terminated by us or by you. We are entitled to terminate this Agreement and your access to your Service account at any time without advance notice to you. You are entitled to terminate the Service at any time by providing notice to us in accordance with our then-current procedures for account termination, in which event we will cease selling your eBooks within five (5) business days from the date you provide us notice of termination. We may also suspend your Service account at any time with or without notice to you, for any reason in our sole discretion. Following termination or suspension, we may fulfill any customer orders for your eBooks pending as of the date of termination or suspension, and we may continue to maintain digital copies of your eBooks in order to provide continuing access to or re-downloads of your eBooks or otherwise support customers who have purchased an eBook prior to termination or suspension. The following provisions of this Agreement will survive termination of this Agreement: Sections I, II, VI, VII,VIII, IX, X, XI, XII, XIII, XV and any other provisions that, by their nature, are intended to survive. All rights to eBooks acquired by customers will survive termination.

III. Account Eligibility and Registration.

A. Eligibility. The Service is marketed for and directed towards use by adults. Individuals under the age of 18 ("Minors") are not permitted to use the Service. You must have an account in good standing to use the Service. You must have a valid U.S. Credit Card on file with PubIt! at all times to use the Service.

B. Account Security. Every Content Provider that has an account with the Service is responsible for: (i) keeping his or her account password confidential and secured, (ii) preventing unauthorized access to such Content Provider's account; and (iii) keeping the e-mail address associated with that account current. You acknowledge that it is important to keep the e-mail address associated with your account current because although you may be able to log into your account using an old e-mail address, you will not receive important messages from Barnes & Noble regarding the Service. You accept full responsibility for all activities that occur within your account while you are using the Service or any Barnes & Noble website. You consent to receive electronic communications from Barnes & Noble whether addressed to the e-mail address associated with such your account or posted on the Barnes & Noble website by which you accessed the Service. You acknowledge and agree that any communication via e-mail or by postings on such website satisfies any legal requirement that such communications be made in writing.

C. Account Information. You represent that all information you provide to us in connection with establishing your account, such as your name, address and email, was accurate when you provided it, and you agree to keep it current as long as you use the Service. You may maintain only one account with the Service at a time. If we terminate your account, you will not establish a new account. You will not use false identities or impersonate any other person or use a username or password you are not authorized to use. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify account information you provide. Your personal information will be collected, stored, and used in keeping with our Privacy Policy.

IV. eBook Delivery, Acceptance, and Withdrawal.

A. Delivery. You shall deliver to Barnes & Noble, at your own expense and in accordance with the Service Policies , which includes our Content Policy , each eBook you would like to distribute through the Service in a format compatible for sale, marketing, display, distribution, licensing and promotion by Barnes & Noble as set forth in the Service Policies . Any electronic files or physical content or media you deliver to us will be retained by Barnes & Noble and will not be returned to you. All eBooks delivered to Barnes & Noble must be free of computer viruses, worms, and any other potentially harmful or disrupting code.

B. Content Requirements. You must ensure that all eBook content is in compliance with our Content Policy  at the time you submit it to us. If you discover that content you have submitted does not comply, you must immediately withdraw the content or replace it with content that complies through the procedures for eBook withdrawal or re-submission as listed on the website. We are entitled to remove or modify the cover artwork, metadata and product description (collectively, the "Product Data") you provide for your eBooks for any reason, including if we determine that it does not comply with our Content Policy. You may not include in any eBook advertisements or other content that is primarily intended to advertise or promote products or services. You must ensure that all Product Data you provide to us is current, complete, and accurate. If you discover that any Product Data you have provided to us for an eBook is inaccurate or incomplete, you must promptly submit corrected Product Data to us through the procedures for Product Data submission as listed on the website.

C. eBook Withdrawal. Content Provider may withdraw from sale any eBook from the Service using the procedures for eBook withdrawal as listed on the website. If you request that an eBook be withdrawn from sale, Barnes & Noble will make commercially reasonable efforts to terminate the future sale of that eBook by the fifth (5) business day after you submitted your request for withdrawal, provided however that Barnes & Noble shall continue to be able to distribute such eBook to past purchasers of that eBook.

D. eBook Rejection. Barnes & Noble is entitled to determine what content we accept and distribute through the Service in our sole discretion. If we request that you provide additional information relating to your eBooks, such as information confirming that you have all rights required to permit our distribution of the eBooks, you will promptly provide the information requested, and you represent and warrant that any information and documentation you provide to us in response to such a request will be current, complete, and accurate. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the eBooks and the accuracy of the information or documentation you provide to us with respect to those rights.

E. Reformatting. We may, in our discretion, reformat your eBooks to make them compatible with the Service, and you acknowledge that certain unintentional formatting errors may occur in the process of reformatting of your eBooks. We will not make any material changes to the text of your eBook(s).  If any such errors do occur, you may remove the affected eBook from further sale under the Service as provided in Section IV.C. above, and such removal will be your only remedy for such errors. We may also, in our discretion, correct any errors existing in an eBook file as you deliver it to us.

F. Marketing. We will have sole discretion in determining all marketing and promotions related to the sale of your eBooks through the Service, and you agree that we may use (and allow our contractors and agents to use) the cover of your eBooks in any and all marketing, promotional, or packaging materials for any software, website, or device through which your eBooks are made available or accessible, directly and through multiple channels of distribution, in any media now known or later developed, without further need for permission from you, and without further royalties or payments to you.  Barnes & Noble may make each eBook available for online sale and downloads in one or more formats. Prior to general commercial distribution, Barnes & Noble may distribute or cause to be distributed free of charge to some employees of Barnes & Noble copies of each eBook in any format for purposes of testing the electronic distribution of such eBooks in such format. Barnes & Noble reserves the right to distribute and display via download all front matter of an eBook and up to five percent (5%) of an eBook's content (nonexclusive of an eBook's front matter) free as a sampler.

YOU ACKNOWLEDGE THAT BARNES & NOBLE HAS NO OBLIGATION TO MARKET, DISTRIBUTE, OR OFFER FOR SALE ANY EBOOK OR PART THEREOF, OR TO CONTINUING MARKETING, DISTRIBUTING OR SELLING AN EBOOK AFTER WE HAVE COMMENCED DOING SO.

G. eBook Stores. For any eBook store operated by Barnes & Noble (each an "eBook Store"), including but not limited to any eBook store operated by Barnes & Noble on behalf of any third party, each eBook Store shall be permitted to store on the Barnes & Noble servers eBook titles which were purchased by customers from such eBook Store. Any eBook Store shall be permitted (free of any payment to eBook Provider or any third party) to allow its customers from time to time to upload and download eBooks that were purchased by such customers from such eBook Store even if the eBook is no longer for sale.

H. eBook Lending. Barnes & Noble shall have the right to institute a program whereby customers of any eBook Store can loan eBooks to others. A customer who has purchased an eBook may loan such eBook to one (1) lendee during a lending period. No more than one (1) copy of any one (1) eBook can be on loan from an eBook lendor at any given time. The lending period is for up to fourteen (14) days. By submitting your eBook for distribution using the Service you agree to allow your eBook to be distributed through Barnes & Noble's lending program pursuant to the terms listed in this Section IV.H. and as may be modified from time to time by Barnes & Noble, in its sole discretion.

I. In-Store Privileges. Content Provider acknowledges and agrees that one hundred percent (100%) of every eBook submitted by you can be viewed via Wifi within the confines of a physical Barnes & Noble store and within the reach of such store's Wifi.

J. Digital Locker. You acknowledge that Barnes & Noble shall have the right to permit each customer to store copies of your eBooks in such customer's Digital Locker. A "Digital Locker" is a customer account digital content repository that stores a customer's digital and eBook purchases. The Digital Locker allows for content management activity that includes but is not limited to downloading files, synching with customer devices and storing customer annotations to the eBook.  Customer’s access to eBooks stored in his or her Digital Locker may survive any suspension or termination of this Agreement.

V. Pricing.

A. List Price. You will provide a list price for each eBook you submit to us in accordance with the then current procedures listed in the Service Polices for list price submission (the "List Price"). If we offer your eBook for sale in a different currency (the "Sale Currency") than the currency in which you have submitted your List Price, we may convert the List Price to the Sale Currency at an exchange rate determined by us, and to periodically update the converted List Price in order to reflect current exchange rates. If we convert your List Price to another Sale Currency, the converted List Price in the Sale Currency will be your List Price with respect to the offer and sale of your eBook in the Sale Currency for all purposes under this Agreement. For example, your Royalties will be calculated based on the converted List Price in the Sale Currency. You will adjust the List Price as required to ensure that, at all times that the eBook is available for sale through the Service, the List Price does not exceed the maximum List Price or go below the minimum list price permitted in the Pricing and Payment Terms. Any change in List Price you provide to us will be effective within five (5) business days following the date on which you submit it. We may provide other requirements for List Prices in the Service Policies  which your eBooks must meet in order to be accepted and remain in the Service, in addition to the requirements provided in the Pricing and Payment Terms. The List Price you provide will be exclusive of value-added or similar taxes which are included within the purchase price of a product ("VAT"). If we display a List Price to customers, we may add applicable VAT to the List Price you provide to determine the List Price that we display.

B. Customer Prices. We have sole and complete discretion to set the Retail Price at which your eBooks are sold to the customer, provided that such retail price shall in no event affect your List Price. We are solely responsible for processing payments, payment collection, requests for refunds and related customer service, and will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Service.

VI. Payments.

A. Royalty. If you are not in breach of your obligations under this Agreement, for each eBook sold to a customer (i.e., an end user) through the Service, Barnes & Noble will pay you the applicable Royalty set forth in the Pricing and Payment Terms, net of refunds, bad debt, and any applicable taxes charged to a customer or applied with respect to sales to a customer (including without limitation any VAT or sales taxes).

B. Payment Terms. Barnes & Noble will pay Royalties on their respective eBook sales approximately sixty (60) days following the end of the calendar month during which they make the applicable sale. At the time of payment, we will make available to you an online report detailing sales of eBooks and corresponding Royalties. All payments will be made via Electronic Funds Transfer ("EFT") payments or other method we designate in the Service Policies , in the Sale Currency or other payment currency we provide for in the Service Policies . If we give you the option to change your payment currency and you select that option using our then-current procedures, the change will be effective on the first day of the calendar month following the calendar month in which you make the change (unless we make an earlier period available). If we pay you in a currency other than the Sale Currency, we will convert the Royalties due from the Sale Currency to the payment currency at an exchange rate we determine, which will be inclusive of all fees and charges for the conversion. We may require you to register in your account a valid bank account for receiving EFT payments that is in compliance with the then-current Service Policies , in which case we will not be obligated to make payments of Royalties to you unless you do so. We are entitled to accrue and withhold payments until the total amount due is at least $10 or for payments in other currencies, at least those amounts we set forth in the Service Policies . You may not maintain any action or proceeding against us in respect of any statement unless you commence that action or suit within six (6) months after the date the statement is rendered. Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by us to you for the accounting periods in question, and your sole remedy shall be the recovery of those monies with no interest thereon. If we pay you a Royalty on a sale and later issue a refund, return, or credit for such sale, we may offset the amount of the Royalty previously paid for the sale against future Royalties, or require you to remit that amount to us. Negative balances can occur when the value of all refunds of a Content Provider's eBooks during a given payment period exceeds that value of orders for that Content Provider's eBooks. If the Content Provider has a negative balance on its payment date, the negative balance may be charged to the Content Provider's credit card on that date. Please Note: if a Content Provider's negative balance exceeds ten dollars ($10) at any point, that balance will be charged to the Authorized Seller's credit card immediately. If a third party asserts that you did not have all rights required to make available an eBook you have made available through the Service or if we determine that you may be in breach of your representations and warranties in this Agreement, we will be entitled to hold all Royalties due until we reasonably determine that the third party claim was illegitimate or that you were not in breach or have fully remedied your breach, as applicable. Upon termination of this Agreement, we may withhold all Royalties due for a period of three months from the date they would otherwise be payable in order to ensure our ability to off-set any refunds or other offsets we are entitled to take against the Royalties.

C. Taxes. In the event that the sale or delivery of any eBook to any end user is subject to any sales, use, good and services, value added or similar tax under applicable law, Barnes & Noble will collect such tax and remit it to the taxing authorities. You are responsible for any income or other taxes due and payable resulting from payments to you by Barnes & Noble under this Agreement. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. Barnes & Noble maintains the right, however, to deduct or withhold any and all applicable taxes from amounts due by them to you, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.

VII. Grant of Rights.

Content Provider hereby grants Barnes & Noble, for the term of this Agreement, the right to make its eBooks available for sale, marketing, display, distribution and promotion in any commercially available electronic or digitized format or on any electronic device platforms (including but not limited to hand-held devices and computers) whether now existing or hereafter created or developed. Content Provider further authorizes and licenses Barnes & Noble to: (i) convert or render eBooks, including without limitation any text, information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material contained therein, into a format suitable for the sale, distribution, marketing, display and promotion of such eBooks hereunder; (ii) store the eBooks on servers hosted by or on behalf of Barnes & Noble; (iii) index and catalogue the eBooks; (iv) allow end users to copy, paste, print, email, annotate, view online and share the eBooks; (v) bundle the eBooks with related physical content available for sale from Barnes & Noble; and (vi) use the eBooks as otherwise provided herein. Content Provider grants Barnes & Noble the non-exclusive and irrevocable rights set forth in this Section VII on a worldwide basis; however, in the event we make available to you a procedure for indicating that you do not have worldwide distribution rights to an eBook, then Barnes & Noble may, but is not obligated to set the territory for the sale of that eBook to those territories which you indicate, through the Service.

VIII. Security/DRM.

Barnes & Noble shall use commercially reasonable efforts to provide industry standard and commercially reasonable copyright protection (Digital Rights Management, herein referred to as "DRM") for those Content Providers who have indicated to Barnes & Noble that DRM is to be applied for an eBook. You acknowledge that all security technology is subject to possible breach by interlopers. Barnes & Noble assumes no responsibility for any breaches of such security technology.

IX. Rights Clearances.

With respect to all eBooks, you will obtain and pay for any and all necessary clearances and licenses for the eBooks 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.

X. Representations, Warranties, and Indemnities.

You represent and warrant that: (i) You hold the necessary rights, including all intellectual property rights, in and to the eBook and related content to enter into this Agreement and grant the rights granted herein and such rights are not subject to any prior agreement, lien or encumbrance that may interfere with the free exercise of Barnes & Noble's rights hereunder; (ii) the eBook does not contain any obscene or libelous material or material that is in any way unlawful; (iii) the use, with reasonable care and skill, of any instruction, material, or advice contained in the eBook is not likely to result in injury and the eBook includes appropriate warnings and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice; (iv) the eBook may be sold, marketed, displayed, distributed and promoted as contemplated by this Agreement without violating or infringing the rights of any other person or entity, including, without limitation, infringing any copyright, patent, trademark or right of privacy, or any other intellectual or industrial property right, title or interest of any party, and without obligating Barnes & Noble to pay any fees to third parties; (v) You will pay or cause to be paid all royalties, fees or other compensation due to third parties in connection with the use of the eBook in the manner contemplated by this Agreement; and (vi) the metadata provided by you hereunder shall be accurate and current. You agree to indemnify and hold harmless Barnes & Noble and its parent, subsidiaries and affiliates, and their respective directors, officers, employees, agents, shareholders, partners, members and other owners against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys' fees and expenses) brought about by any person that arise out of or are based on (i) your breach of this Agreement and, any breach of the representations, warranties, covenants or agreements you make herein. Barnes & Noble will be entitled, at its expense, to participate in the defense and settlement of the claim or action with counsel of its own choosing.

XI. Ownership of Service/Feedback.

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 your eBooks. Barnes & Noble retains all ownership rights in and to the copyrights and all other rights and interests in and to the Service, the website, and all related content. Barnes & Noble is solely responsible for, and will have full discretion with respect to the terms, features, and operation of the Service and the marketing therefore, provided that our use of the eBooks pursuant to the rights granted herein will be subject to the terms of this Agreement. In the event that you as Content Provider provide suggestions, advice, ideas or other feedback ("Feedback") to Barnes & Noble in conjunction with the Program, Barnes & Noble shall be free to use and exploit such Feedback without restriction without any need to remunerate or otherwise compensate Content Provider.

XII. Confidentiality.

"Barnes & Noble Confidential Information" means: (i) any information that would reasonably be considered to be confidential information of Barnes & Noble in light of the circumstances surrounding the disclosure; and (ii) any other confidential information provided by Barnes & Noble to Content Provider hereunder including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; and (d) business information, including operations, planning, marketing interests, and products. Except with the prior written consent of Barnes & Noble, you shall not (i) use or disclose any Barnes & Noble Confidential Information other than to employees and contractors who have a need to know and any disclosure to contractors may only be to contractors who have signed a non-disclosure agreement to protect the confidential information of third parties; or (ii) make copies or allow others to make copies of such Barnes & Noble Confidential Information except as is reasonably necessary for internal business purposes. If Content Provider is required to disclose Barnes & Noble Confidential Information to a third party in connection with any ongoing civil or criminal investigation, or any judicial or administrative proceeding, Content Provider will promptly notify Barnes & Noble so that it may, if it chooses, seek an appropriate protective order or take other appropriate steps to seek to limit or prevent such disclosure. In addition, nothing in this Agreement shall prohibit or limit your use or disclosure of information (i) previously known to you without obligation of confidence; (ii) independently developed by or for you without use of or access to the Barnes & Noble Confidential Information; (iii) acquired by you from a third party which is not under an obligation of confidence with respect to such information; or (iv) which is or becomes publicly available through no breach of this Agreement. Without limiting the survivability of any other provision of this Agreement this Section XII will survive five (5) years following the termination of this Agreement.

XIII. Limitation of Liability.

IN NO EVENT SHALL BARNES & NOBLE'S LIABILITY EXCEED THE AMOUNT PAYABLE BY BARNES & NOBLE TO CONTENT PROVIDER PURSUANT TO THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRECEEDING ANY CLAIM. EXCEPT WITH RESPECT TO THE PARTIES' INDEMNIFICATION OBLIGATIONS HEREUNDER OR CONTENT PROVIDERS'S BREACH OF SECTION XII (CONFIDENTIALITY), NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR PENALTIES INCLUDING, BUT NOT LIMITED TO, LOSSES OF DATA, BUSINESS, REVENUE OR ANTICIPATED PROFITS. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WHETHER OR NOT THE PARTIES WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PROGRAM IS PROVIDED "AS IS." BARNES & NOBLE SPECIFICALLY DISCLAIMS, 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. BARNES & NOBLE DOES NOT WARRANT THAT THE USE OF THE APPLICATION OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  BARNES & NOBLE CANNOT ENSURE THAT DIGITAL BOOKS SUBMITTED BY OR ON BEHALF OF CONTENT PROVIDER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT CUSTOMERS WILL COMPLY WITH ANY CONTENT USAGE RULES BARNES & NOBLE MAY MAKE APPLICABLE IN CONNECTION WITH USE OF DIGITAL BOOKS, AND BARNES & NOBLE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY CONTENT USAGE RULES.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A CONTENT PROVIDER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO SUCH CONTENT PROVIDER, AND SUCH CONTENT PROVIDER MAY HAVE ADDITIONAL RIGHTS.

XIV. Amendments to Agreement.

A. Amendments. We reserve the right to change the terms of this Agreement at any time in our sole discretion and without liability. We will give you notice of the changes by posting new terms at http://pubit.barnesandnoble.com/pubit_app/bn?t=reg_terms_print  with a revision date indicated on the page or by sending an email to the email address then registered for your account with us.

B. Amendments to Agreement Terms Other than Those in Sections VI (Payments) and VII (Grant of Rights).  Content Provider acknowledges and agrees that Barnes & Noble may amend this Agreement from time to time at Barnes & Noble’s sole discretion in accordance with general changes to the Program.  Amendments to terms of this Agreement other than those contained in Sections VI (Payments) and VII (Grant of Rights) will be effective as of the date we post them, unless we otherwise provide notice at the time we post the changes. You are responsible for checking for updates.  If you do not agree to the amendments, you must withdraw your eBooks from further distribution through the Service and terminate your use of the Service.  Your continued use of the Service after we post amendments will constitute your acceptance of the changes.

C. Amendments to the Terms of Section VI (Payments) and VII (Grant of Rights). Amendments to terms of this Agreement contained in Sections VI (Payments) and VII (Grant of Rights) will be effective and binding on you on the date thirty (30) days from posting. Your continued use of the Service after we post amendments will constitute your acceptance of the changes. Changes to the terms of Sections VI and VII will only apply prospectively with respect to eBooks sold after the date thirty (30) days from our posting of the amendments, unless you accept the changes as provided above. If you do not accept the changes, you must withdraw your eBooks from further distribution through the Service and terminate your use of the Service prior to the date thirty (30) days from our posting of the changes. Note that we may make acceptance of changes a condition to continued use of the Service.

XV. Miscellaneous.

Neither Party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create a partnership or joint venture between the Parties hereto. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. The failure of either Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches. This Agreement shall be construed as if jointly drafted by the Parties. This Agreement shall be governed by the laws of the State of New York, without regard to its principles of conflicts of law. Any litigation hereunder shall be brought in any state or federal court of competent jurisdiction in New York County, New York; the Parties agree that venue shall be proper in, and consent to the personal jurisdiction of, such courts. Neither Party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld, except that upon written notice, Barnes & Noble may assign its rights and delegate its duties under this Agreement to (i) a subsidiary, division, or affiliate, (ii) to a third party in connection with a merger, reorganization or the sale of the company or substantially all of its assets, or (iii) to a third party or to a business formed in connection with the separation of Barnes & Noble’s digital business.  Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Agreement shall be binding upon the successors and permitted assigns of both Parties. Each Party to this Agreement acknowledges that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, between the parties. You consent to the use of electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement. Any notice or other communication to be given hereunder will be in writing and given: (i) by us via email, via a posting on the Service Website or via a message through your Service account; or (ii) by you via email to pubit@bn.com with a copy to Barnes & Noble, Attention: General Counsel, by email to DMCANOTICE@barnesandnoble.com or to such other addresses as we may specify in the Service Policies. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.

© 2012 barnesandnoble.com llc

 

eBook Publication and Distribution Agreement - PubIt!

Last Modified:  November 6, 2012. The Privacy Policy referenced herein is effective as of November 1, 2012 ("Effective Date").

 

Please note, each Agreement (as defined below) in effect as of July 3, 2012 has been assigned from Barnes & Noble, Inc. to barnesandnoble.com llc, and barnesandnoble.com llc agrees that it shall be bound by all of the terms and conditions hereof.  This statement serves as notice to you as set forth in Section XV below.

 

This eBook Publication and Distribution Agreement is made as part of an online application (the "Application") for participation in PubIt!™, a digital self-publishing and retail distribution platform (the "Service") from barnesandnoble.com llc (hereinafter referred to as "Barnes & Noble, "we" or "us") and includes, in addition to the terms set forth below, the Pricing and Payment Terms , the Content Policy , all rules and policies for using the Service provided on the Barnesandnoble.com website (the "Service Policies" ), the Barnesandnoble.com website Terms of Use , and the Barnesandnoble.com Privacy Notice located at http://www.barnesandnoble.com/help/cds2.asp?PID=8104  (collectively, this "Agreement").

This Agreement contains the complete terms and conditions that apply to your use of the Service and your distribution of digital content including but not limited to the eBook file, product description, and cover art through the Service (all such content, "eBooks"). This Agreement is a binding agreement between Barnes & Noble and the individual or entity identified as the Content Provider in the Application ("you" or "Content Provider"). As used in this Agreement, "affiliates" means any entity that directly or indirectly controls, is controlled by, or is under common control with Barnes & Noble, and "Barnes & Noble party" means, individually, Barnesandnoble.com llc. and each Barnes & Noble affiliate that joins as a party to this Agreement as provided in Section XV. If the Content Provider is an entity, the individual person who accepts this Agreement for Content Provider hereby represents and warrants that he or she is entitled to enter this Agreement as an authorized representative of Content Provider and to bind Content Provider to the terms of this Agreement.

I.  Agreement Acceptance

II.            Term and Termination

III.          Account Eligibility and Registration

IV.          eBook Delivery, Acceptance, and Withdrawal

V.            Pricing

VI.          Payments

VII.        Grant of Rights

VIII.      Security/DRM

IX.          Rights Clearances

X.            Representations, Warranties, and Indemnities

XI.          Ownership of Service/Feedback

XII.        Confidentiality

XIII.      Limitation of Liability

XIV.      Amendments to Agreement

XV.        Miscellaneous

THE TERMS OF THIS AGREEMENT ARE IMPORTANT AND WE ENCOURAGE YOU TO REVIEW THEM CAREFULLY BEFORE PROCEEDING WITH YOUR USE OF THE SERVICE.

I. Agreement Acceptance.

You accept this Agreement and agree to be bound by its terms by either (a) clicking agree or accept where you're given the option to do so or (b) by using the Service, or any part of it. If you do not accept the terms, you may not use the Service.

II. Term and Termination.

The term of this Agreement will begin upon your acceptance of it and will continue until it is terminated by us or by you. We are entitled to terminate this Agreement and your access to your Service account at any time without advance notice to you. You are entitled to terminate the Service at any time by providing notice to us in accordance with our then-current procedures for account termination, in which event we will cease selling your eBooks within five (5) business days from the date you provide us notice of termination. We may also suspend your Service account at any time with or without notice to you, for any reason in our sole discretion. Following termination or suspension, we may fulfill any customer orders for your eBooks pending as of the date of termination or suspension, and we may continue to maintain digital copies of your eBooks in order to provide continuing access to or re-downloads of your eBooks or otherwise support customers who have purchased an eBook prior to termination or suspension. The following provisions of this Agreement will survive termination of this Agreement: Sections I, II, VI, VII,VIII, IX, X, XI, XII, XIII, XV and any other provisions that, by their nature, are intended to survive. All rights to eBooks acquired by customers will survive termination.

III. Account Eligibility and Registration.

A. Eligibility. The Service is marketed for and directed towards use by adults. Individuals under the age of 18 ("Minors") are not permitted to use the Service. You must have an account in good standing to use the Service. You must have a valid U.S. Credit Card on file with PubIt! at all times to use the Service.

B. Account Security. Every Content Provider that has an account with the Service is responsible for: (i) keeping his or her account password confidential and secured, (ii) preventing unauthorized access to such Content Provider's account; and (iii) keeping the e-mail address associated with that account current. You acknowledge that it is important to keep the e-mail address associated with your account current because although you may be able to log into your account using an old e-mail address, you will not receive important messages from Barnes & Noble regarding the Service. You accept full responsibility for all activities that occur within your account while you are using the Service or any Barnes & Noble website. You consent to receive electronic communications from Barnes & Noble whether addressed to the e-mail address associated with such your account or posted on the Barnes & Noble website by which you accessed the Service. You acknowledge and agree that any communication via e-mail or by postings on such website satisfies any legal requirement that such communications be made in writing.

C. Account Information. You represent that all information you provide to us in connection with establishing your account, such as your name, address and email, was accurate when you provided it, and you agree to keep it current as long as you use the Service. You may maintain only one account with the Service at a time. If we terminate your account, you will not establish a new account. You will not use false identities or impersonate any other person or use a username or password you are not authorized to use. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify account information you provide. Your personal information will be collected, stored, and used in keeping with our Privacy Policy.

IV. eBook Delivery, Acceptance, and Withdrawal.

A. Delivery. You shall deliver to Barnes & Noble, at your own expense and in accordance with the Service Policies , which includes our Content Policy , each eBook you would like to distribute through the Service in a format compatible for sale, marketing, display, distribution, licensing and promotion by Barnes & Noble as set forth in the Service Policies . Any electronic files or physical content or media you deliver to us will be retained by Barnes & Noble and will not be returned to you. All eBooks delivered to Barnes & Noble must be free of computer viruses, worms, and any other potentially harmful or disrupting code.

B. Content Requirements. You must ensure that all eBook content is in compliance with our Content Policy  at the time you submit it to us. If you discover that content you have submitted does not comply, you must immediately withdraw the content or replace it with content that complies through the procedures for eBook withdrawal or re-submission as listed on the website. We are entitled to remove or modify the cover artwork, metadata and product description (collectively, the "Product Data") you provide for your eBooks for any reason, including if we determine that it does not comply with our Content Policy. You may not include in any eBook advertisements or other content that is primarily intended to advertise or promote products or services. You must ensure that all Product Data you provide to us is current, complete, and accurate. If you discover that any Product Data you have provided to us for an eBook is inaccurate or incomplete, you must promptly submit corrected Product Data to us through the procedures for Product Data submission as listed on the website.

C. eBook Withdrawal. Content Provider may withdraw from sale any eBook from the Service using the procedures for eBook withdrawal as listed on the website. If you request that an eBook be withdrawn from sale, Barnes & Noble will make commercially reasonable efforts to terminate the future sale of that eBook by the fifth (5) business day after you submitted your request for withdrawal, provided however that Barnes & Noble shall continue to be able to distribute such eBook to past purchasers of that eBook.

D. eBook Rejection. Barnes & Noble is entitled to determine what content we accept and distribute through the Service in our sole discretion. If we request that you provide additional information relating to your eBooks, such as information confirming that you have all rights required to permit our distribution of the eBooks, you will promptly provide the information requested, and you represent and warrant that any information and documentation you provide to us in response to such a request will be current, complete, and accurate. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the eBooks and the accuracy of the information or documentation you provide to us with respect to those rights.

E. Reformatting. We may, in our discretion, reformat your eBooks to make them compatible with the Service, and you acknowledge that certain unintentional formatting errors may occur in the process of reformatting of your eBooks. We will not make any material changes to the text of your eBook(s).  If any such errors do occur, you may remove the affected eBook from further sale under the Service as provided in Section IV.C. above, and such removal will be your only remedy for such errors. We may also, in our discretion, correct any errors existing in an eBook file as you deliver it to us.

F. Marketing. We will have sole discretion in determining all marketing and promotions related to the sale of your eBooks through the Service, and you agree that we may use (and allow our contractors and agents to use) the cover of your eBooks in any and all marketing, promotional, or packaging materials for any software, website, or device through which your eBooks are made available or accessible, directly and through multiple channels of distribution, in any media now known or later developed, without further need for permission from you, and without further royalties or payments to you.  Barnes & Noble may make each eBook available for online sale and downloads in one or more formats. Prior to general commercial distribution, Barnes & Noble may distribute or cause to be distributed free of charge to some employees of Barnes & Noble copies of each eBook in any format for purposes of testing the electronic distribution of such eBooks in such format. Barnes & Noble reserves the right to distribute and display via download all front matter of an eBook and up to five percent (5%) of an eBook's content (nonexclusive of an eBook's front matter) free as a sampler.

YOU ACKNOWLEDGE THAT BARNES & NOBLE HAS NO OBLIGATION TO MARKET, DISTRIBUTE, OR OFFER FOR SALE ANY EBOOK OR PART THEREOF, OR TO CONTINUING MARKETING, DISTRIBUTING OR SELLING AN EBOOK AFTER WE HAVE COMMENCED DOING SO.

G. eBook Stores. For any eBook store operated by Barnes & Noble (each an "eBook Store"), including but not limited to any eBook store operated by Barnes & Noble on behalf of any third party, each eBook Store shall be permitted to store on the Barnes & Noble servers eBook titles which were purchased by customers from such eBook Store. Any eBook Store shall be permitted (free of any payment to eBook Provider or any third party) to allow its customers from time to time to upload and download eBooks that were purchased by such customers from such eBook Store even if the eBook is no longer for sale.

H. eBook Lending. Barnes & Noble shall have the right to institute a program whereby customers of any eBook Store can loan eBooks to others. A customer who has purchased an eBook may loan such eBook to one (1) lendee during a lending period. No more than one (1) copy of any one (1) eBook can be on loan from an eBook lendor at any given time. The lending period is for up to fourteen (14) days. By submitting your eBook for distribution using the Service you agree to allow your eBook to be distributed through Barnes & Noble's lending program pursuant to the terms listed in this Section IV.H. and as may be modified from time to time by Barnes & Noble, in its sole discretion.

I. In-Store Privileges. Content Provider acknowledges and agrees that one hundred percent (100%) of every eBook submitted by you can be viewed via Wifi within the confines of a physical Barnes & Noble store and within the reach of such store's Wifi.

J. Digital Locker. You acknowledge that Barnes & Noble shall have the right to permit each customer to store copies of your eBooks in such customer's Digital Locker. A "Digital Locker" is a customer account digital content repository that stores a customer's digital and eBook purchases. The Digital Locker allows for content management activity that includes but is not limited to downloading files, synching with customer devices and storing customer annotations to the eBook.  Customer’s access to eBooks stored in his or her Digital Locker may survive any suspension or termination of this Agreement.

V. Pricing.

A. List Price. You will provide a list price for each eBook you submit to us in accordance with the then current procedures listed in the Service Polices for list price submission (the "List Price"). If we offer your eBook for sale in a different currency (the "Sale Currency") than the currency in which you have submitted your List Price, we may convert the List Price to the Sale Currency at an exchange rate determined by us, and to periodically update the converted List Price in order to reflect current exchange rates. If we convert your List Price to another Sale Currency, the converted List Price in the Sale Currency will be your List Price with respect to the offer and sale of your eBook in the Sale Currency for all purposes under this Agreement. For example, your Royalties will be calculated based on the converted List Price in the Sale Currency. You will adjust the List Price as required to ensure that, at all times that the eBook is available for sale through the Service, the List Price does not exceed the maximum List Price or go below the minimum list price permitted in the Pricing and Payment Terms. Any change in List Price you provide to us will be effective within five (5) business days following the date on which you submit it. We may provide other requirements for List Prices in the Service Policies  which your eBooks must meet in order to be accepted and remain in the Service, in addition to the requirements provided in the Pricing and Payment Terms. The List Price you provide will be exclusive of value-added or similar taxes which are included within the purchase price of a product ("VAT"). If we display a List Price to customers, we may add applicable VAT to the List Price you provide to determine the List Price that we display.

B. Customer Prices. We have sole and complete discretion to set the Retail Price at which your eBooks are sold to the customer, provided that such retail price shall in no event affect your List Price. We are solely responsible for processing payments, payment collection, requests for refunds and related customer service, and will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Service.

VI. Payments.

A. Royalty. If you are not in breach of your obligations under this Agreement, for each eBook sold to a customer (i.e., an end user) through the Service, Barnes & Noble will pay you the applicable Royalty set forth in the Pricing and Payment Terms, net of refunds, bad debt, and any applicable taxes charged to a customer or applied with respect to sales to a customer (including without limitation any VAT or sales taxes).

B. Payment Terms. Barnes & Noble will pay Royalties on their respective eBook sales approximately sixty (60) days following the end of the calendar month during which they make the applicable sale. At the time of payment, we will make available to you an online report detailing sales of eBooks and corresponding Royalties. All payments will be made via Electronic Funds Transfer ("EFT") payments or other method we designate in the Service Policies , in the Sale Currency or other payment currency we provide for in the Service Policies . If we give you the option to change your payment currency and you select that option using our then-current procedures, the change will be effective on the first day of the calendar month following the calendar month in which you make the change (unless we make an earlier period available). If we pay you in a currency other than the Sale Currency, we will convert the Royalties due from the Sale Currency to the payment currency at an exchange rate we determine, which will be inclusive of all fees and charges for the conversion. We may require you to register in your account a valid bank account for receiving EFT payments that is in compliance with the then-current Service Policies , in which case we will not be obligated to make payments of Royalties to you unless you do so. We are entitled to accrue and withhold payments until the total amount due is at least $10 or for payments in other currencies, at least those amounts we set forth in the Service Policies . You may not maintain any action or proceeding against us in respect of any statement unless you commence that action or suit within six (6) months after the date the statement is rendered. Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by us to you for the accounting periods in question, and your sole remedy shall be the recovery of those monies with no interest thereon. If we pay you a Royalty on a sale and later issue a refund, return, or credit for such sale, we may offset the amount of the Royalty previously paid for the sale against future Royalties, or require you to remit that amount to us. Negative balances can occur when the value of all refunds of a Content Provider's eBooks during a given payment period exceeds that value of orders for that Content Provider's eBooks. If the Content Provider has a negative balance on its payment date, the negative balance may be charged to the Content Provider's credit card on that date. Please Note: if a Content Provider's negative balance exceeds ten dollars ($10) at any point, that balance will be charged to the Authorized Seller's credit card immediately. If a third party asserts that you did not have all rights required to make available an eBook you have made available through the Service or if we determine that you may be in breach of your representations and warranties in this Agreement, we will be entitled to hold all Royalties due until we reasonably determine that the third party claim was illegitimate or that you were not in breach or have fully remedied your breach, as applicable. Upon termination of this Agreement, we may withhold all Royalties due for a period of three months from the date they would otherwise be payable in order to ensure our ability to off-set any refunds or other offsets we are entitled to take against the Royalties.

C. Taxes. In the event that the sale or delivery of any eBook to any end user is subject to any sales, use, good and services, value added or similar tax under applicable law, Barnes & Noble will collect such tax and remit it to the taxing authorities. You are responsible for any income or other taxes due and payable resulting from payments to you by Barnes & Noble under this Agreement. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. Barnes & Noble maintains the right, however, to deduct or withhold any and all applicable taxes from amounts due by them to you, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.

VII. Grant of Rights.

Content Provider hereby grants Barnes & Noble, for the term of this Agreement, the right to make its eBooks available for sale, marketing, display, distribution and promotion in any commercially available electronic or digitized format or on any electronic device platforms (including but not limited to hand-held devices and computers) whether now existing or hereafter created or developed. Content Provider further authorizes and licenses Barnes & Noble to: (i) convert or render eBooks, including without limitation any text, information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material contained therein, into a format suitable for the sale, distribution, marketing, display and promotion of such eBooks hereunder; (ii) store the eBooks on servers hosted by or on behalf of Barnes & Noble; (iii) index and catalogue the eBooks; (iv) allow end users to copy, paste, print, email, annotate, view online and share the eBooks; (v) bundle the eBooks with related physical content available for sale from Barnes & Noble; and (vi) use the eBooks as otherwise provided herein. Content Provider grants Barnes & Noble the non-exclusive and irrevocable rights set forth in this Section VII on a worldwide basis; however, in the event we make available to you a procedure for indicating that you do not have worldwide distribution rights to an eBook, then Barnes & Noble may, but is not obligated to set the territory for the sale of that eBook to those territories which you indicate, through the Service.

VIII. Security/DRM.

Barnes & Noble shall use commercially reasonable efforts to provide industry standard and commercially reasonable copyright protection (Digital Rights Management, herein referred to as "DRM") for those Content Providers who have indicated to Barnes & Noble that DRM is to be applied for an eBook. You acknowledge that all security technology is subject to possible breach by interlopers. Barnes & Noble assumes no responsibility for any breaches of such security technology.

IX. Rights Clearances.

With respect to all eBooks, you will obtain and pay for any and all necessary clearances and licenses for the eBooks 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.

X. Representations, Warranties, and Indemnities.

You represent and warrant that: (i) You hold the necessary rights, including all intellectual property rights, in and to the eBook and related content to enter into this Agreement and grant the rights granted herein and such rights are not subject to any prior agreement, lien or encumbrance that may interfere with the free exercise of Barnes & Noble's rights hereunder; (ii) the eBook does not contain any obscene or libelous material or material that is in any way unlawful; (iii) the use, with reasonable care and skill, of any instruction, material, or advice contained in the eBook is not likely to result in injury and the eBook includes appropriate warnings and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice; (iv) the eBook may be sold, marketed, displayed, distributed and promoted as contemplated by this Agreement without violating or infringing the rights of any other person or entity, including, without limitation, infringing any copyright, patent, trademark or right of privacy, or any other intellectual or industrial property right, title or interest of any party, and without obligating Barnes & Noble to pay any fees to third parties; (v) You will pay or cause to be paid all royalties, fees or other compensation due to third parties in connection with the use of the eBook in the manner contemplated by this Agreement; and (vi) the metadata provided by you hereunder shall be accurate and current. You agree to indemnify and hold harmless Barnes & Noble and its parent, subsidiaries and affiliates, and their respective directors, officers, employees, agents, shareholders, partners, members and other owners against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys' fees and expenses) brought about by any person that arise out of or are based on (i) your breach of this Agreement and, any breach of the representations, warranties, covenants or agreements you make herein. Barnes & Noble will be entitled, at its expense, to participate in the defense and settlement of the claim or action with counsel of its own choosing.

XI. Ownership of Service/Feedback.

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 your eBooks. Barnes & Noble retains all ownership rights in and to the copyrights and all other rights and interests in and to the Service, the website, and all related content. Barnes & Noble is solely responsible for, and will have full discretion with respect to the terms, features, and operation of the Service and the marketing therefore, provided that our use of the eBooks pursuant to the rights granted herein will be subject to the terms of this Agreement. In the event that you as Content Provider provide suggestions, advice, ideas or other feedback ("Feedback") to Barnes & Noble in conjunction with the Program, Barnes & Noble shall be free to use and exploit such Feedback without restriction without any need to remunerate or otherwise compensate Content Provider.

XII. Confidentiality.

"Barnes & Noble Confidential Information" means: (i) any information that would reasonably be considered to be confidential information of Barnes & Noble in light of the circumstances surrounding the disclosure; and (ii) any other confidential information provided by Barnes & Noble to Content Provider hereunder including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; and (d) business information, including operations, planning, marketing interests, and products. Except with the prior written consent of Barnes & Noble, you shall not (i) use or disclose any Barnes & Noble Confidential Information other than to employees and contractors who have a need to know and any disclosure to contractors may only be to contractors who have signed a non-disclosure agreement to protect the confidential information of third parties; or (ii) make copies or allow others to make copies of such Barnes & Noble Confidential Information except as is reasonably necessary for internal business purposes. If Content Provider is required to disclose Barnes & Noble Confidential Information to a third party in connection with any ongoing civil or criminal investigation, or any judicial or administrative proceeding, Content Provider will promptly notify Barnes & Noble so that it may, if it chooses, seek an appropriate protective order or take other appropriate steps to seek to limit or prevent such disclosure. In addition, nothing in this Agreement shall prohibit or limit your use or disclosure of information (i) previously known to you without obligation of confidence; (ii) independently developed by or for you without use of or access to the Barnes & Noble Confidential Information; (iii) acquired by you from a third party which is not under an obligation of confidence with respect to such information; or (iv) which is or becomes publicly available through no breach of this Agreement. Without limiting the survivability of any other provision of this Agreement this Section XII will survive five (5) years following the termination of this Agreement.

XIII. Limitation of Liability.

IN NO EVENT SHALL BARNES & NOBLE'S LIABILITY EXCEED THE AMOUNT PAYABLE BY BARNES & NOBLE TO CONTENT PROVIDER PURSUANT TO THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRECEEDING ANY CLAIM. EXCEPT WITH RESPECT TO THE PARTIES' INDEMNIFICATION OBLIGATIONS HEREUNDER OR CONTENT PROVIDERS'S BREACH OF SECTION XII (CONFIDENTIALITY), NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR PENALTIES INCLUDING, BUT NOT LIMITED TO, LOSSES OF DATA, BUSINESS, REVENUE OR ANTICIPATED PROFITS. THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WHETHER OR NOT THE PARTIES WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PROGRAM IS PROVIDED "AS IS." BARNES & NOBLE SPECIFICALLY DISCLAIMS, 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. BARNES & NOBLE DOES NOT WARRANT THAT THE USE OF THE APPLICATION OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  BARNES & NOBLE CANNOT ENSURE THAT DIGITAL BOOKS SUBMITTED BY OR ON BEHALF OF CONTENT PROVIDER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT CUSTOMERS WILL COMPLY WITH ANY CONTENT USAGE RULES BARNES & NOBLE MAY MAKE APPLICABLE IN CONNECTION WITH USE OF DIGITAL BOOKS, AND BARNES & NOBLE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY CONTENT USAGE RULES.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A CONTENT PROVIDER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO SUCH CONTENT PROVIDER, AND SUCH CONTENT PROVIDER MAY HAVE ADDITIONAL RIGHTS.

XIV. Amendments to Agreement.

A. Amendments. We reserve the right to change the terms of this Agreement at any time in our sole discretion and without liability. We will give you notice of the changes by posting new terms at http://pubit.barnesandnoble.com/pubit_app/bn?t=reg_terms_print  with a revision date indicated on the page or by sending an email to the email address then registered for your account with us.

B. Amendments to Agreement Terms Other than Those in Sections VI (Payments) and VII (Grant of Rights).  Content Provider acknowledges and agrees that Barnes & Noble may amend this Agreement from time to time at Barnes & Noble’s sole discretion in accordance with general changes to the Program.  Amendments to terms of this Agreement other than those contained in Sections VI (Payments) and VII (Grant of Rights) will be effective as of the date we post them, unless we otherwise provide notice at the time we post the changes. You are responsible for checking for updates.  If you do not agree to the amendments, you must withdraw your eBooks from further distribution through the Service and terminate your use of the Service.  Your continued use of the Service after we post amendments will constitute your acceptance of the changes.

C. Amendments to the Terms of Section VI (Payments) and VII (Grant of Rights). Amendments to terms of this Agreement contained in Sections VI (Payments) and VII (Grant of Rights) will be effective and binding on you on the date thirty (30) days from posting. Your continued use of the Service after we post amendments will constitute your acceptance of the changes. Changes to the terms of Sections VI and VII will only apply prospectively with respect to eBooks sold after the date thirty (30) days from our posting of the amendments, unless you accept the changes as provided above. If you do not accept the changes, you must withdraw your eBooks from further distribution through the Service and terminate your use of the Service prior to the date thirty (30) days from our posting of the changes. Note that we may make acceptance of changes a condition to continued use of the Service.

XV. Miscellaneous.

Neither Party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create a partnership or joint venture between the Parties hereto. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. The failure of either Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches. This Agreement shall be construed as if jointly drafted by the Parties. This Agreement shall be governed by the laws of the State of New York, without regard to its principles of conflicts of law. Any litigation hereunder shall be brought in any state or federal court of competent jurisdiction in New York County, New York; the Parties agree that venue shall be proper in, and consent to the personal jurisdiction of, such courts. Neither Party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party, which shall not unreasonably be withheld, except that upon written notice, Barnes & Noble may assign its rights and delegate its duties under this Agreement to (i) a subsidiary, division, or affiliate, (ii) to a third party in connection with a merger, reorganization or the sale of the company or substantially all of its assets, or (iii) to a third party or to a business formed in connection with the separation of Barnes & Noble’s digital business.  Any attempted assignment, delegation or transfer in derogation hereof shall be null and void. This Agreement shall be binding upon the successors and permitted assigns of both Parties. Each Party to this Agreement acknowledges that this Agreement supersedes all prior or contemporaneous agreements, discussions, or representations, whether oral or written, between the parties. You consent to the use of electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement. Any notice or other communication to be given hereunder will be in writing and given: (i) by us via email, via a posting on the Service Website or via a message through your Service account; or (ii) by you via email to pubit@bn.com with a copy to Barnes & Noble, Attention: General Counsel, by email to DMCANOTICE@barnesandnoble.com or to such other addresses as we may specify in the Service Policies. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.

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