Untitled chapter
E-BOOK DISTRIBUTION AGREEMENT
This e-book distribution agreement (the “Agreement”) is made as of __________, 20__ (the “Effective Date”) between Holtzbrinck Publishers, LLC, doing business as Macmillan, 120 Broadway, New York, NY 10271 (the “Publisher”) and ______________________________________ (“Agent”), with an address at: ___________________________________________, Attn: ________________, phone: _____________, e-mail: __________________, and retail website(s) at ___________________.
THE PARTIES HERETO AGREE AS FOLLOWS:
1. Grant of Rights
(a) Publisher E-Books. The Publisher hereby appoints Agent as its non-exclusive agent for the distribution and delivery of Publisher’s, its affiliates’, and its distributees’ e-book (electronic book) editions, for those titles selected by Publisher in its sole discretion (the “Publisher E-Books”), for the Territory specified in Section 1(d) herein, solely through the retail website(s) specified above and successor websites (the “Agent Websites”) and any third-party retail websites or platforms approved in writing by Publisher in its sole discretion (such third-party websites or platforms, “Third-Party Platforms,” and together with the Agent Websites, the “Websites”) for the Term of this Agreement as defined in Section 8 herein. Agent represents that each of the Agent Websites is owned or controlled by Agent, and each of the Websites will as long as Publisher E-Books are distributed from them specifically and primarily target consumers in the Territory. Agent will appoint the owners or operators of each of the Third-Party Platforms as Agent’s sub-agents for the distribution of the Publisher E-Books pursuant to this Agreement, each such sub-agent subject to approval in writing by Publisher in its sole discretion, and Agent will be responsible for assuring that each sub-agent’s distribution and delivery of Publisher E-Books is performed solely in accordance with this Agreement and with the territorial restrictions specified herein. Accordingly, Publisher grants Agent and any approved sub-agent the non-exclusive right to offer to purchasers of Publisher E-Books the ability to download the purchased Publisher E-Books sold via the Websites to personal electronic reading devices (including personal computers and hand held devices), and/or the ability to access the purchased Publisher E-Books sold via the Websites on a secure password protected website (such secure password protected website where customers access purchased Publisher E-Books sold via the Websites hereafter the “Reading Website”), and thereby to electronically access, display, view, and read them, each for personal non-commercial use only; this grant does not grant, and specifically excludes, the right to authorize purchasers to copy, paste or print Publisher E-Books, except as provided in the DRM Specifications attached hereto as Exhibit A. Agent and any approved sub-agent may distribute and deliver each Publisher E-Book only as an entire book and only as a separate single title for sale, and not in any other format. Without limiting the generality of the foregoing, Agent and any sub-agent may not, without the prior written approval of Publisher in its sole discretion, bundle Publisher E-Books with other books or products, rent or lend them, distribute them as part of a subscription, or as single chapters or other parts of a book, give them away for promotional purposes or otherwise, or authorize anyone else to do any of the foregoing. Notwithstanding anything to the contrary in this Agreement, Agent shall obtain advance written approval of Publisher in its sole discretion for any distribution of Publisher E-Books that enables customers to access Publisher E-Books on a Reading Website.
(b) Publisher E-Book Jacket and Excerpt. Solely for the purpose of promoting Publisher E-Books, Publisher grants Agent and any approved sub-agent the non-exclusive right to post and authorize the posting on the Websites (including on the homepage of the Websites and the pages offering to sell Publisher E-Books), and/or to offer for download from the Websites to personal electronic reading devices (including personal computers and hand held devices), and/or to offer for access on a Reading Website, and thereby to provide without charge to Website visitors and potential purchasers, within the Territory, for the Term, the ability to electronically access, display, view, and read, each for personal non-commercial use: the front jacket or cover, back jacket or cover, and/or flap copy (provided that the front and back jacket or cover may only be offered for download if, and to the extent, included by Publisher in the Publisher E-Book file that Publisher delivers to Agent pursuant to Section 3); the copyright notice page; the table of contents (if any); and/or an excerpt selected by Publisher in the metadata from the beginning chapters of each Publisher E-Book, comprising no more than 7500 words or ten percent (10%) of the book whichever is smaller. Agent shall obtain the prior written approval of Publisher for any advertising or promotions featuring Publisher E-books, other than as expressly authorized in this Section 1(b).
(c) Publisher’s Trademarks and Logos. Publisher grants Agent and any approved sub-agent for the Term the non-exclusive right to post and authorize the posting of the names and logos of the publisher and/or imprint of Publisher E-Books on the Websites and Reading Websites solely for the purpose of identifying the publisher thereof. Agent and any approved sub-agent will use the form of names or logos supplied by Publisher, if so supplied, or, if not, as they appear in the Publisher E-Books as provided to Agent. Except as so used on the Websites to promote sales of the Publisher E-Books, and in Publisher E-Books as provided by Publisher, Agent and any sub-agent will not use or display or authorize the use or display of Publisher’s or its affiliates’ or distributees’ names, imprint names, trademarks, service marks or logos pursuant to this Agreement except in their advertising or distribution of Publisher E-Books.
(d) Territory. The “Territory” with respect to each Publisher E-Book will be the United States and Canada except that if the Publisher by notice, or in metadata Publisher provides to Agent pursuant to this Agreement, does not authorize the distribution of any particular Publisher E-Books in either the United States or Canada, the “Territory” with respect to those Publisher E-Books will exclude such country. Publisher may change the Territory with respect to any Publisher E-Book(s) to add or remove either the United States or Canada at any time by notice or in metadata. For clarity, notwithstanding that Publisher may designate territories other than the United States and Canada in the metadata, the Territory shall not include any such other territories. Agent and sub-agents will cause the Websites to screen and block purchases and access outside the Territory by using the purchaser’s credit card bill-to address, any address specified by the would-be purchaser upon registration with the Websites, and any other geographic information Agent or its sub-agents may obtain concerning the would-be purchaser.
(e) Reserved Rights. All rights in the Publisher E-Books not specifically granted in this Agreement are reserved by the Publisher. Agent and any sub-agent will not use or authorize the use of the Publisher E-Books, or any copies made from them, and will not distribute or make Publisher E-Books available, or encourage others to do so, other than as expressly authorized in this Section 1 or elsewhere in this Agreement. Agent and any sub-agent will not make use of or authorize the use of all or any portion of the contents of any works published or scheduled to be published by Publisher or any of its affiliates or distributees (excluding any portions thereof that are in the public domain in the United States or Canada, and then only within the applicable country) except as expressly authorized in this Agreement without permission from the applicable rightsholder. Nothing herein limits Publisher’s or its affiliates’ or distributees’ rights to distribute Publisher E-Books themselves and/or through other agents.
2. Payment
(a) Customer Price. The Publisher will set a United States dollar price and, for each Publisher E-Book for which the Territory includes Canada, a Canadian dollar price (each such price, as applicable, the “Customer Price”) to be charged by the Websites to the end-user purchaser for each Publisher E-Book. Agent will ensure that all sales of Publisher E-Books are to end-user purchasers for their own personal use and are at the applicable Customer Price. The Publisher shall be free to change either Customer Price of any Publisher E-Book at any time and will notify Agent of the change by notice or by changing the metadata. Agent will implement the update to the Customer Price within forty-eight (48) hours of such notice. All sales to United States customers will be in U.S. dollars and all sales to Canadian customers will be in Canadian dollars. The Agent will determine whether a customer is a United States customer or a Canadian customer for all purposes under this Agreement based on the customer’s billing address, and if a billing address cannot be verified or the customer has not provided billing information, based on the originating IP address. For clarity, the Customer Price is exclusive of any Sales Taxes.
(b) Agent’s Commission. For each copy of a Publisher E-Book sold pursuant to this Agreement, Agent will pay Publisher seventy percent (70%) of the Customer Price for that Publisher E-Book, in the currency in which the subject Customer Price was set by Publisher. The remainder of the Customer Price will be retained by Agent and/or its sub-agents as a commission in consideration of their services to be performed hereunder. Agent or its sub-agents will assume all risk of non-payment by purchasers and Agent will pay Publisher its 70% of the Customer Price for each copy of a Publisher E-Book sold pursuant to this Agreement. The “sale” of a Publisher E-Book shall occur when the end-user purchaser becomes entitled to access the entire Publisher E-Book.
(c) EULA. Agent and any sub-agents shall condition an end user’s ability to download or access a purchased Publisher E-Book on end user’s acceptance of an End User License Agreement (“EULA”) which shall include terms stating in substance with respect to Publisher E-Books that: (i) all e-books purchased are for the end user’s personal non-commercial use only; (ii) no commercial or promotional use rights are granted in any e-book purchased; (iii) end-users may not sell, distribute or display any e-book purchased other than for personal use; (iv) end-users shall not disable or circumvent DRM supplied with Publisher E-Books; (v) end-users may not burn to disk copies of all or any portion of any e-book; (vi) the e-book returns policy prohibits returns after five (5) business days for any reason other than corrupt or defective e-book files or issues related to payment processing (e.g. duplicate charges); (vii) if Agent or its sub-agents elects to provide customers with a replacement copy of a purchased e-book, the replacement copy may be an updated version of that e-book, and there is no obligation to provide replacement copies in the event that Agent or a sub-agent is no longer distributing that Publisher E-Book or is not generally providing replacement copies of e-books; and (viii) purchasers are prohibited from concurrent access on more than two (2) simultaneous connections on internet-connected reading devices and are limited to six (6) authorized, non-internet-connected reading devices. To the extent that Agent or any sub-agent provides an end user with the ability to access a purchased Publisher E-Book on a Reading Website, the EULA shall also state in substance, with respect to Publisher E-Books, that website access to purchased e-books may not be available in the event that Agent or its sub-agents cease making e-books, Publisher E-Books, or that title generally available for website access, however in such circumstances the customer will continue to be able to read any purchased e-book that was previously downloaded for off-line reading.
(d) Replacement Copy. Notwithstanding anything to the contrary in this Section 2, the Websites may during the Term, subject to Sections 6(c) and 8(b), replace a damaged or lost downloaded Publisher E-Book, for a customer who has previously purchased that Publisher E-Book at that Website, at no charge to the customer, if such replacement is provided in accordance with that Website’s consistent and reasonable practice on replacements. If a new version of the Publisher E-Book has been provided to Agent pursuant to Section 4 or 6(b), the new version will be used for any replacement copies. Replacement copies of damaged or lost Publisher E-Books provided to the customer without charge pursuant to this Section 2(d) shall not be treated as sales to the customer and, therefore, no payment will be due to Publisher for such copies and no commissions will be earned by Agent on such copies.
(e) Taxes.
(i) For sales of Publisher E-Books to United States customers in states that have enacted Marketplace Facilitator laws and in which Agent’s operations meet the state’s threshold requirements to operate as a Marketplace Facilitator, Agent and its sub-agents will charge and collect any applicable sales, use, excise, gross receipts, or other taxes on the sale or delivery of Publisher E-Books required by law, and Agent will remit such taxes to the applicable tax authorities.
(ii) For sales of Publisher E-Books to Canadian customers and United States customers in states where Agent is not operating as a Marketplace Facilitator, Publisher shall supply to Agent the criteria on which Agent and its sub-agents shall rely in order to collect any applicable sales, use, excise, gross receipts, Canadian Goods and Services Tax/Harmonized Sales Tax (“GST/HST”) or other taxes (collectively, “Sales Taxes”), including tax nexus information. In turn, Agent will cause the Websites to charge the appropriate Sales Taxes to customers who purchase Publisher E-Books in all jurisdictions in which Publisher informs Agent that it has a tax nexus and a taxable transaction has occurred, and Agent will, and will cause its sub-agents to, collect Sales Taxes from customers; Agent will then aggregate the collections by Agent and its sub-agents and will remit to Publisher the aggregated taxes collected by no later than the fifteenth day from the end of each calendar month in which the sale took place, and Publisher will be responsible for remitting applicable taxes to the appropriate taxing authority.
(iii) Agent will provide to Publisher complete and accurate monthly sales tax reports, separately for United States sales (in United States dollars) and for Canadian sales (in Canadian dollars), one at a detail level and one at a summary level (hereafter, “Sales Tax Reports”). The detail level reports (one for United States sales and one for Canadian sales) will be subtotaled at the local, county, state and province level. These reports will contain the following information for each purchase (invoice number, invoice date, name of sub-agent, eISBN or identifier of the purchased Publisher E-Books, quantity purchased and the Customer Price of each purchased Publisher E-Book, gross exempt amount, gross taxable amount, GST, HST, state tax, city tax, county tax, transit tax and total tax). The summary level reports (one for United States sales and one for Canadian sales) will provide the subtotals at the local, county, state and province level. These reports will contain only the following information (gross exempt amount, gross taxable amount, GST, HST, state tax, city tax, county tax, transit tax and total tax). The summary level report will provide the information separately for Agent and each sub-agent, as well as a total for Agent and all its sub-agents together. Agent will deliver Sales Tax Reports in a manner that the data can be reformatted by Publisher, in a form approved by Publisher, and with any additional information reasonably requested by Publisher. Agent will make these Sales Tax Reports available to Publisher no later than three (3) business days from the end of each calendar month. Agent will, and will cause its sub-agents to, maintain all data necessary to demonstrate the accuracy of its monthly reports and of its Sales Tax calculations for each month until at least the end of the third calendar year after the calendar year that includes that month. Publisher and Agent shall jointly work together to resolve any audits related to Sales Taxes, and in the event of an audit of Publisher, Agent will, and will cause its sub-agents to, cooperate with Publisher and provide Publisher with any additional data it needs to respond to the audit.
