DIGITAL PUBLICATION DISTRIBUTION AGREEMENT – BLOGS AND PERIODICALS:
This Digital Publication Distribution Agreement – Blogs and Periodicals is made as part of an online application (the “Application”) for participation in a digital self-publication and distribution program (the “Program”) from Amazon Digital Services, Inc. (“Amazon” and, together with Amazon’s affiliates, “we” or “us”). Before using the Program, please read the terms of this agreement, all rules and policies related to the Program (including, but not limited to, any rules and policies for the Program included on Amazon.com), the Amazon.com Privacy Notice and the Amazon.com Conditions of Use (collectively, the “Agreement”). The Agreement is a binding agreement between Amazon and the individual or entity identified as the Publisher in the Application (“you” or “Publisher”). The Agreement contains the complete terms and conditions that apply to your participation in the Program. As used in this Agreement, Amazon “affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with Amazon. “Authorized Representative” means the individual who completes the Application by, or on behalf of, the Publisher. By accepting the Agreement in accordance with the instructions on our website, Authorized Representative hereby represents and warrants that:
The Authorized Representative is at least 18 years of age and has the legal capacity to enter into this Agreement.
The Authorized Representative is entitled to enter this Agreement as an authorized representative of Publisher and to bind Publisher to the terms of this Agreement.
The information provided for Publisher in the Application is accurate, and states, without limitation, the real name, address and e-mail address of Publisher.
1. Publisher Publications.
1.1 Publications. This Agreement covers all content which you have identified for inclusion in the Program in the Application or which you otherwise provide to us for inclusion in the Program (each a “Publication”). If there is a print edition version of the Publication, then the Publication you provide must include the same content as the print edition version, excluding (i) any content such as tables and box scores which are in a format that is not supported by the Program, (ii) advertisements, and (iii) the links described in Section 1.2 below. You will make each Publication available to us throughout the Term (as defined below). If you cease production and distribution of a Publication during the Term (i.e., the Publication is no longer available on your website or otherwise available online or through any digital distribution service), you may remove the Publication from the Program by providing us thirty (30) days advance written notice.
1.2 Delivery Format. You will deliver Publications to us in accordance with the electronic formatting and delivery requirements set forth below in this Section 1.2 and any updated or additional formatting and delivery requirements we provide from time to time, along with a print replica of the intended outcome of the Publication feed in the form of a pdf or similar file which we may use as a reference for quality assurance and error correction. You further authorize us to compare the provided Publication against versions you publish online (e.g. versions you post of the Publications on your website) and to conform the version you provided to us to the version you publish online. You will deliver a full text, well formed XML feed of each publication from which you have removed all advertisements and other materials that are primarily intended to advertise or promote products or services and from which you have removed all video and / or user-generated links (e.g., Reddit, DIGG, and Technorati). All deliveries must be free and clear of viruses, worms and other potentially harmful or disrupting code. At or before your first delivery of each Publication, you will deliver to us a copy of the logo for the Publication that is suitable for our use to market and advertise the Publication. If you do not do so, you authorize us to select, and license us the right to use, logos from the Publication as you deliver them to us or as you may otherwise publish the logos online.
1.3 Delivery Timing. You agree to give us ongoing updates during the Term by continuously delivering to us all new stories, articles, letters, columns and other discrete works of authorship for all Publications (each discrete work of authorship, an “Article”), as soon as reasonably possible following their completion and in any event at or prior to the time at which you make the Articles available through any other web site, XML feed, or otherwise available for electronic distribution or syndication.
2. Program Description. The Program allows us to sell subscriptions of Publications (“Subscriptions”) to and single issues of Publications (“Single Issues”) for digital delivery to customers (“Customers”). The Program may include features that allow Customers to search, copy, paste, print or annotate one or more pages of any Publication or Article (as defined below). We will be entitled to set all parameters for Customer use.
3. Pricing and Program Terms. We may in our sole discretion set the retail price for Subscriptions and Single Issues as well as terms for all promotions and solicitations to be used in connection with the marketing and sale of Subscriptions and Single Issues. We will have sole control over the processing of payments, payment collection, handling of requests for refunds and customer service related to the Program, and we will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Program. We may, but are not obligated to, make your Publications available at no charge as part of free trial subscription(s) or other promotional offer(s) for up to thirty (30) days per Customer.
4. Royalties. Provided you are not in breach of your obligations under this Agreement or any term of this Agreement, we will pay you a royalty equal to thirty percent (30%) of Subscription and Single Issue sales revenues actually received by us from sales of Subscriptions to and Single Issues of your Publications, net of refunds, credits, bad debt, and any taxes charged to a customer (including without limitation sales taxes) (a “Royalty”). Subscription and Single Issue sales revenues means only amounts actually received by us for the sale of Subscriptions to and Single Issues of your Publications through the Program and excludes any fees paid for any product or service other than a Subscription or Single Issue, even if sold together with any Subscription or Single Issue. If we sell a Subscription or Single Issue to a Publication together with any other content at one undistinguished price (the “Single Price”), sales revenues for such sale will be allocated on a pro rata basis based on the then-current stand-alone retail price for each individual content title included as part of such sale (after taking into account any discounts accorded each participating title in the Single Price sale).
5. Payment Terms. We will pay Royalties approximately sixty (60) days following the end of the calendar month during which applicable sales of Publications occur. We will provide statements regarding the number of free trials, paid Subscriptions, free trial cancellations, paid Subscription cancellations, and the amount of Subscription and Single Issue sales revenue for your Publications collected during the applicable month. All payments will be made in U.S. dollars. If Publisher is unable to accept Electronic Funds Transfer (“EFT”) payments, or if Publisher does not provide a valid U.S. bank account number for payments, we will pay by check. We will accrue and withhold payments until the total amount due is at least $10 if we pay by EFT and until the total amount due is at least $50 if we pay by check, provided, however, that we may make a payout of all accrued amounts at any time in our discretion. Additionally, if we pay by check, we will charge a fee of $8.00 per check for all Publishers other than those domiciled outside of the United States as indicated by the address in the Publisher’s Application, and we will have an additional thirty (30) days to make your payment. All statements are conclusive, final and binding, unless Publisher gives Amazon written notice stating the specific basis for objection within six (6) months after the date rendered. You may not maintain any action or proceeding against us in respect of any such statement unless you commence that action or suit within six (6) months following the date that you provide Amazon with the written notice referred to in the immediately preceding sentence. Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by Amazon to you for the accounting periods in question, and your sole remedy shall be the recovery of those monies with no interest thereon.
6. Taxes. We are responsible for collecting and remitting any and all taxes imposed on our sale of Publications to Customers. You are responsible for any income or other taxes due and payable resulting from amounts owed to you by us under this Agreement. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. We maintain the right, however, to deduct or withhold any and all applicable taxes from such amounts, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.
7. Rights Granted. You grant to us, throughout the term of this Agreement, a nonexclusive, irrevocable, worldwide right and license to distribute Publications as described in this Agreement, such right to include, without limitation, the right to: (a) reproduce and store Publications on one or more computer facilities, and reformat, convert and encode Publications; (b) display, market, transmit, distribute, and otherwise digitally make available all or any portion of Publications through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view, including on any Portable Device (as defined below); (c) permit customers to “store” Publications that they have purchased from us on Amazon’s servers (“Virtual Storage”) and to re-download such Publications from Virtual Storage from time to time; (d) display and distribute (i) your trademarks and logos in the form you provide them to us , including within Publications (with such modifications as are necessary to optimize their viewing on Portable Devices), and (ii) other limited portions of Publications, in each case on and through any Amazon Properties and solely for the purposes of marketing, soliciting and selling Publications; (e) use, reproduce, adapt, modify, and create derivative works of any metadata that you submit to us for the purpose of improving categorization, recommendations, personalization features and other features of any Amazon Properties; and (f) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) Publications as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display). In addition, you agree that Amazon may permit its affiliates and independent contractors, and its affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement. “Amazon Properties” means the website with the primary home page identified by the URL http://www.amazon.com/, together with any successor or replacement thereto (the “Amazon Site”), any software application that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, video and/or other content, and any other web site or any web page widget or other web page real estate or online point of presence, on any platform, that is owned by us or operated under license by us (such as http://www.target.com/ ), branded or co-branded Amazon or with any brand we license for use, own or control, and any web site or online point of presence through which any Amazon sites or products available for sale thereon are syndicated, offered, merchandised, advertised or described. “Portable Device” means any device that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, video and/or other content via wireless telecommunications service, Wi-Fi, USB, or otherwise.
8. Amendment, Term and Termination. We reserve the right to change the terms of this Agreement at any time. We will notify you of changes to this Agreement by sending you an e-mail to the e-mail address registered for you in the Application or by posting the updated agreement on Amazon.com. If you do not agree to the changes, you will be entitled to terminate the Agreement by providing us written notice (in the manner provided in Section 14.2) and removing your Publications from further sale through the Program by using our Program procedures for removal of Publications from further sale within seven (7) days of our notice to you. IF YOU DO NOT GIVE US NOTICE OF TERMINATION, YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING POSTING OF THE CHANGES OR OUR NOTICE TO YOU WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES. This Agreement will remain in effect unless and until terminated by either party in accordance with this Section. Amazon has the right, in its sole discretion, to terminate this Agreement without cause upon notice to you which may be delivered by an email sent to the e-mail address registered for you in the Application. You have the right, in your sole discretion, to terminate this Agreement without cause by delivering at least 30 days’ prior written notice to Amazon delivered as provided in Section 14.2 below. All rights to Publications acquired by Customers prior to termination shall survive termination, and Amazon shall be entitled to retain archival copies of the Publications after termination in order to provide access or copies of the Digital Books to customers who have purchased Publications prior to termination. All rights, terms and obligations stated to continue after termination and all rights, terms and obligations that, by their nature, continue after termination will survive any termination of the Agreement, including, without limitation, Sections 3-6 (but only to the extent of any payments that are accrued but unpaid at termination), Sections 8-14, and any provisions that define capitalized terms in the foregoing sections.
9. Technology. You acknowledge that Amazon has no obligation to implement technology or other limitations on copying or transfer of any Publication we distribute.
10. Ownership and Control of Amazon Properties. Subject to the authorizations granted to us under this Agreement, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to the Publications. We retain all ownership rights in and to the copyrights and all other rights and interests in and to the Program and the Amazon Properties. We are solely responsible for, and shall have full discretion with respect to the design and operation of the Program and the Amazon Properties and the marketing therefor, provided that Amazon’s use of the Publications under this Agreement shall be subject to the terms of this Agreement. In the event that you elect to provide suggestions, ideas, or other feedback to Amazon or any of its affiliates in connection with the Amazon Properties, Portable Devices, or the Program (“Feedback”), Amazon and its affiliates will be free to use and exploit the same in any manner without restriction and without any need to compensate you. We have no obligation to market, distribute, or offer for sale any Publication or part of any Publication, or to continue marketing, distributing or selling a Publication after we have commenced doing so. This Agreement does not grant you permission to use, and you will not use without Amazon’s express written permission, any trademarks, trade names, logos, or other identifying indicia of Amazon or its affiliates, except as may be permitted under applicable law or a separate permission.
11. Clearances. With respect to all Publications, you will obtain and pay for any and all necessary clearances and licenses for the Publications to permit our exercise of the rights granted under this Agreement without any further payment obligation by us, including, without limitation, all royalties and other income due to any copyright owner.
12. Representations, Warranties, Indemnities, Etc.. Publisher represents and warrants that: (i) it is a corporation or other entity or a sole proprietorship or person domiciled in the United States and that the information provided for Publisher in the Application is accurate; (ii) it has not had a Program account which has been terminated by Amazon; (iii) it shall comply at all times with the terms of this Agreement; (iv) it has the full right, power and authority to enter into and fully perform this Agreement and shall comply with the terms of this Agreement; (v) prior to Publisher’s or its designee’s delivery of any content, it shall have obtained all rights that are necessary for Amazon or its affiliates to exercise the rights granted hereunder; (vi) neither the exercise of the rights authorized hereunder nor any materials embodied in the content nor its sale or distribution as authorized herein will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction; (vii) it will ensure that all Publications delivered to us hereunder comply with the technical delivery specifications provided by us; (viii) it is and shall be solely responsible for accounting and paying to any co-owners or co-administrators of any Publication or portion thereof (a) any royalties with respect to the uses of the content, and (b) their respective shares, if any, of any monies payable hereunder. Publisher shall indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of Publisher’s representations or warranties set forth in this Agreement. We shall be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.
13. Limitation of Liability. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT SHALL OUR LIABILITY HEREUNDER EXCEED THE AMOUNT OF FEES DUE AND PAYABLE BY AMAZON UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER ACKNOWLEDGES AND AGREES THAT AMAZON CANNOT ENSURE THAT PUBLICATIONS SUBMITTED BY OR ON BEHALF OF PUBLISHER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT SUBSCRIBERS WILL COMPLY WITH ANY CONTENT USAGE RULES AMAZON OR ITS AFFILIATES MAY MAKE APPLICABLE IN CONNECTION WITH USE OF PUBLICATIONS, AND AMAZON WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY SUCH CONTENT USAGE RULES.
14.1 Confidentiality. You will maintain all Amazon Confidential Information (as defined below) in strict confidence and not disclose Amazon Confidential Information to any third party or use Amazon Confidential Information for any purpose other than the performance of this Agreement without our express, prior written permission. However, you may disclose Amazon Confidential Information as required to comply with applicable law, only if you (A) give us prior written notice sufficient to allow us to seek a protective order or other appropriate remedy; (B) disclose only that Amazon Confidential Information as is required by applicable law; and (C) use reasonable efforts to obtain confidential treatment for any Amazon Confidential Information so disclosed. “Amazon Confidential Information” means (a) any information regarding Amazon, its affiliates, and their businesses, including, without limitation information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs, (b) the nature, content and existence of any communications between you and us, and (c) any sales data relating to the sale of Publications or other information we provide or make available to you. However, Amazon Confidential Information does not include information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to you at the time you receive it from us, (iii) you receive from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) you can show by documentation that you have independently developed without reference to any Amazon Confidential Information. Without limiting the generality of the foregoing in this Section 14.1, you will not issue any press releases or make any other public disclosures regarding this Agreement or its terms. This Section 14.1 will survive three (3) years following the termination of the Agreement.
14.2 General. This Agreement may not be amended, except in writing signed by both parties or as provided in Section 8 above. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The parties to this Agreement are independent contractors. Neither party is an agent, employee representative, or partner of the other party. Each party will bear its own costs and expenses in performing this Agreement. Amazon will send all notices and other communications to you at the e-mail address or the mailing address that you provide in connection with your Application. You must send all notices and other communication relating to this Agreement to Amazon at the following e-mail address: email@example.com, with a paper copy to Amazon.com, Attention: General Counsel, 1200 12th Avenue South, Suite 1200, Seattle, WA 98144. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other, except that (i) Amazon may assign any of its rights and obligations under this Agreement without consent and (ii) you may assign all of you rights and obligations under this Agreement to any corporation or other entity domiciled in the United States without consent in connection with the sale of all or substantially all of the assets of the Publication; provided that you shall give Amazon written notice of any such assignment no later than ten (10) business days following such assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement will be governed by the laws of the State of Washington, without reference to rules governing choice of laws or the U.N. Convention on Contracts for the International Sale of Goods. Content Provider irrevocably consents and waives any objection to the exclusive jurisdiction and venue of the federal and state courts located in King County, Washington with respect to any claims, suits or proceedings arising out of or in connection with this Agreement or the transactions contemplated by this Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersedes any and all prior or contemporaneous agreements between the parties with respect to the subject matter of this Agreement and does not confer upon any other person other than the parties any rights or remedies under this Agreement.