Summary of main points of agreement
1. GRANT OF RIGHTS
The Client hereby appoints the Company as its non-exclusive distributor to resell, distribute and make available the Digital Titles through the Client’s website. The Company shall also be entitled to exercise such ancillary digital rights as are reasonably necessary to effect the intent of the foregoing and in order to utilise the relevant technology, including the right to reproduce, adapt, convert, cache, encode, encrypt, decrypt, transmit, make available and otherwise exploit the Digital Titles in preparation for distribution.
For clarification on any intellectual property (IP) or copyright issues, please see 10(a).
2. TERM AND TERMINATION
(a) This Agreement shall commence on the Effective Date when the client signs up and shall, subject to the provisions of sections 2(b) and 2(c), remain in force until terminated by either party.
(b) If either party commits a material breach of any provision of this Agreement, the non-breaching party may terminate this Agreement provided that the breaching party has not resolved the material breach within fourteen (14) days of its receipt of written notice of the breach.
(c) This Agreement may be terminated by notice in writing by a party if any of the following events affect the other party: if it shall present a petition or have a petition presented by a creditor for its winding up or shall enter into liquidation (other than for the purpose of reconstruction or amalgamation), shall call any meeting of its creditors, shall have a receiver of all or any of its undertaking or assets appointed, shall have an examiner appointed over all or any of its undertaking or assets or shall be deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts, or shall cease to carry on business or suffer any procedure equivalent to those hereinbefore detailed under any applicable law.
(d) The expiry or termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination. Notwithstanding the expiry or termination of this Agreement, the Company shall be entitled to fulfill all orders for Digital Titles existing as at that expiry or termination and all rights granted by the Company to other parties, including end users, shall remain in full force and effect. Subject to the foregoing, the Company shall have no further or continuing right to resell the Digital Titles after the expiry or termination of this Agreement.
3. ANCILLARY SERVICES
Firsty Group may provide additional ancillary services to the Client, as described in the Services Schedule. Any additional services will be outside of this agreement and agreed separately.
The Client must deliver to the Company or its designated subcontractor all copies of Digital Titles in such format as may be determined by the Company at the Client’s cost, including the cost of encoding, customs clearance, import, VAT and any other tax or import duties that may be applicable in connection with delivery. If the Client delivers Digital Titles to the Company or its designated sub-contractor, in any form of encrypted or copy protected media, the Client authorises the Company or its sub-contractor to decrypt the encrypted media to access the digital data contained on the media. The Client agrees that title to the electronic file or physical printed copy of the Digital Title delivered to the Company or its designated sub-contractor will transfer to the Company or its designated sub-contractor upon receipt provided that title to the electronic file and physical printed works does not include any title to the Content thereof, which remains vested in the Client or its suppliers or licensors.
5. REMOVAL OF TITLES
(a) The Company reserves the right to immediately remove Digital Titles and Content from its catalogue if:
(i) the Company, at its sole discretion, has reason to believe that such Content or any part thereof breaches any of the Client’s representations and warranties set out in section 13 of this Agreement or any additional representations;
(ii) the Company receives a bona fide request from a governmental or regulatory authority, and the Client does not remedy such problem immediately upon the Company's request; or
(iii) the Content could otherwise cause liability or damage to the Company or any of its respective officers, directors, employees or agents. For the avoidance of doubt, the Company and its contracted partners shall be neither responsible nor liable to the Client in any way whatsoever in respect of any retail or end-user customers who fail to remove Digital Titles or Content or who continue to advertise digital material that the Company removed from its catalogues or that continue to solicit or to process orders for Content that the Company has removed from its catalogues.
(a) Each digital list price shall be set by the client, so that the Client is entitled to receive the agreed percentage (70%) of the net list price.
(b) The Client shall also pay the Company for any additional services (such as, for example, file conversion) provided by the Company and agreed with the Client and any charges in respect of additional services shall be detailed separately and a quotation supplied and agreed before any additional services are undertaken.
(c) Payment by the Company shall occur at regular intervals, normally on a monthly and quarterly basis unless stated otherwise in the Services Schedule.
(d) The Company agrees to maintain complete and accurate records regarding the resale and distribution of Digital Titles during the term of this Agreement. The Company's Firsty Express Dashboard may be accessed by the Client, and the Company shall provide details of sales of Digital Titles through this or a similar portal.
(e) The Company reserves the right to set off or deduct overdue amounts or invoices owed by the Client to the Company against any amounts owed by the Company to the Client.
(f) For the avoidance of doubt, the Client shall be entitled to be paid 70% of the net List price (After Tax). in respect of any Digital Title sold in circumstances where a successful order, delivery and receipt of the Digital Title by an end user has occurred. If a technical malfunction requires multiple deliveries to a single retailer or end user to successfully fulfill an order, such multiple deliveries will be deemed to be a single sale of the Digital Title concerned.
(g) For gratis copies provided by the Client, the Company will charge the Client 50p per download. Fees for downloads of gratis copies will be included and itemised in the monthly invoice sent to the Client.
(h) For the avoidance of doubt, the Client will be charged 50p, or 30% of the net list price, per download of each title, whichever is greater.
7. UNDERTAKINGS BY THE CLIENT
(a) The Client undertakes to the Company that during the term of this Agreement it shall provide the Company with relevant information concerning the Digital Titles and Content and provide such other support and assistance to enable the Company to effectively distribute the Digital Titles.
8. GEOGRAPHIC RESTRICTIONS
The Company agrees to use all reasonable endeavours to ensure that, in its dealings with retailers and other distributors, any geographic restrictions which have been notified to the Company by the Client are enforced so as to limit the distribution of the Digital Titles or Content concerned to particular territories. However, the Client acknowledges that due to the nature of the Internet, Digital Titles and/or Content may be sold in geographic territories in respect of which the Client does not have territorial rights and, accordingly, the Client waives any claim for damages against the Company for sales of its Digital Titles and Content in territories in respect of which the Client does not have the right to sell or distribute the same.
9. DIGITAL RIGHTS MANAGEMENT (DRM)
The Company agrees to incorporate into the Client’s digital files the third party digital rights management (DRM) protection as specified in the Services Schedule or otherwise agreed by the Company and the Client. The Company intends to use the latest DRM technologies and the Client acknowledges that all DRM technologies are owned and maintained by the company or third party vendors. The Company's use of any DRM format is subject to the terms and conditions of any applicable licence agreement with the relevant third party vendor. The Client acknowledges that the Company has no control over the functionality or effectiveness of such DRM technologies and accordingly waives any claims against the Company from any and all liability resulting from a failure of the DRM technology, unless such failure was directly caused by gross negligence or willful misconduct on the part of the Company.
10. LICENCE; INTELLECTUAL PROPERTY (IP)
(a) Except with respect to the limited licence granted to the Company under this Agreement, the Content shall at all times remain the property of Client and, if applicable, the Client’s licensors. The Company and its contracted partners are granted a limited, non-exclusive and non-transferable right and licence to use the Content, including cover, marketing images and first chapter material, to exercise its rights hereunder, including without limitation the right and licence to display, distribute, reproduce and store the Content on the Company's on-site systems and off-site systems operated by third party service providers.
(b) The Client is solely responsible and liable for all royalty or other compensation payments due to the authors or owners of the Digital Titles and Content.
(c) The Client does not have and shall not acquire pursuant to this Agreement any right, title or interest in or to the Company's trade names, trademarks, service marks, copyright, trade secrets, patents or any other of the Company's intellectual or proprietary rights. The Company does not have and shall not acquire pursuant to this Agreement any right, title or interest in or to Client’s trade names, trademarks, service marks, copyright, trade secrets, patents or any other of Client’s intellectual or proprietary rights (including any such rights comprised in or relating in any way to the Firsty Express web portal or any other web portal operated by the Company).
(d) The Client shall, while this Agreement remains in force, be entitled to access and use the Firsty Express web portal solely for the purposes set out in this Agreement and subject to any separate terms and conditions of use that may be in force from time to time.
(e) Any files created by the Company at its own expense remain the property of the Company. Any such files will be maintained securely or destroyed upon the cessation or termination of this Agreement and the usage of such files is governed by the terms of this Agreement. All content remains the property of the Client at all times.
The parties may exchange information that is of a confidential and proprietary nature, both technical and commercial (collectively, the 'Confidential Information'). Each party agrees not to disclose to any third parties any Confidential Information received from the other and agrees not to use any Confidential Information received from the other for any purpose other than performance under this Agreement. The parties acknowledge and agree that their respective remedy at law for any actual or threatened breach of this provision would be inadequate and that each party shall be entitled to specific performance or injunctive relief, or both, in addition to any damages otherwise recoverable in law. The confidentiality provisions of this section 11 will not apply to information that: (i) is not in fact kept as confidential by the disclosing party: (ii) was known to the receiving party prior to its disclosure by the disclosing party, or is received by the receiving party, other than from a source that the receiving party knows is subject to a confidentiality agreement with the disclosing party: (iii) is developed by the receiving party independently of its disclosure by the disclosing party, without use of the confidential or proprietary information, by one or more person(s) who do not have access to the confidential or proprietary information: or (iv) is, or becomes other than by reason of a breach of this Agreement, generally known to the public.
12. LIMITATION OF LIABILITY
(a) This section (12) prevails over all other clauses and sets forth the entire liability of the Company and the sole and exclusive remedies of the Client in respect of: (i) the performance, non-performance, the purported performance or delay in performance of this Agreement; and (ii) otherwise in relation to this Agreement or the entering into or performance of this Agreements.
(b) The Company does not purport to limit or exclude any liability which may not be excluded or limited by applicable law.
(c) The Company does not accept and hereby excludes any liability for breach of duty other than any such liability arising pursuant to the terms of this Agreement.
(d) The Company hereby expressly excludes and shall have no liability for any indirect or consequential loss and such liability is excluded whether it is foreseeable, known, foreseen or otherwise.
(e) To the fullest extent permitted by law, the total liability of the Company under or in any way connected with this Agreement and whether in contract, tort (including negligence) or otherwise, including (without limitation), liability expressly provided for under this Agreement or arising by reason of the invalidity or enforceability of any term of this Agreement, shall in no circumstances exceed a sum equal to the aggregate sums paid by the Company to the Client during the six month period preceding the date upon which any such liability is agreed or determined.
(f) The terms of this Agreement are in lieu of all other conditions, warranties or other terms concerning the appointment of the Company and the performance by the Company of its obligations hereunder which might but for this paragraph have effect between the Client and the Company or would otherwise be implied into or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise all of which are hereby excluded (including, without limitation, the implied conditions, warranties or other terms as to merchantability, fitness for purpose or as to the use of reasonable skill and care).
13. WARRANTIES; INDEMNITY
The Client represents and warrants to the Company that:
(a) it has the full, right, power and authority to enter into and fully perform this Agreement;
(b) prior to delivery to the Company of any Digital Titles or Content, it has obtained all rights that are necessary for the Company to exercise the rights granted under this Agreement and it is solely responsible for and must account for and pay owners, licensors, publishers, co-owners or co-administrators of any Digital Titles or Content any royalties with respect to the sale exploitation or use of such Digital Titles or Content and their respective shares, if any, of any monies payable under his Agreement;
(c) it is the owner or authorised licensee of all geographic rights necessary and appropriate to enable the Company to exercise its rights hereunder;
(d) the Digital Content is not and shall not be libelous, slanderous, defamatory, obscene or pornographic;
(e) the Digital Content does not and shall not infringe any copyright, trade mark, trade secret, patent or other intellectual property or proprietary right, or violate any right of privacy, publicity or other right of any person;
(f) the Digital Content does not and shall not violate any applicable laws or regulations, including without limitation any export controls;
(g) the Digital Content does not and shall not contain any recipes, formulae or instructions that, if implemented, might be injurious to end users, retailers or others; and
(h) they have used their best endeavours to ensure that the Digital Content does not and shall not contain any viruses, Trojan horses, trap doors, worms or any other malicious computer programming routines that might damage a computer system.
Except to the extent caused by the gross negligence or willful misconduct of the Company, the Client shall defend, indemnify and hold harmless the Company, its subsidiaries and its respective officers, directors, employees and agents from and against any and all third-party claims, actions, proceedings, damages and expenses (including reasonable legal fees and costs), including but not limited to a breach of the representations and warranties set forth above.
14. FORCE MAJEURE
Any delay or failure of the Company or the Client to perform its respective obligations under this Agreement (but excluding obligations to make payment of money due) shall be excused if and to the extent that such delay or failure is caused by an event beyond the reasonable control of the non-performing party, including without limitation, any act of God, actions by any government authority, fires, floods, natural disasters, riots, wars, labour problems (including lockouts, strikes, and slowdowns), failure of or interruptions in telecommunications or data transmission systems, or the inability to obtain materials, labour, equipment or transportation.
15. ASSIGNMENT; SUBCONTRACTORS
Neither party may assign or otherwise transfer this Agreement or any of its rights and obligations hereunder or any portion thereof without prior written approval of the other, which will not be unreasonably withheld; provided, however, that the Company may, without the prior written approval of the Client, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, or any portion thereof, to any Group company. This Agreement will be binding on and inure to the benefit of the Client and the Company and their respective permitted successors and assigns. The Company is entitled to appoint sub-contractors to fulfill its obligations under this Agreement. The Company shall remain responsible for ensuring that its sub-contractors comply with the applicable provisions of this Agreement when performing services for or on behalf of the Company.
16. NO PARTNERSHIP
Nothing contained in this Agreement shall be deemed to create any partnership, agency, joint venture or fiduciary relationship between the Company and the Client for any purpose.
17. GOVERNING LAW AND JURISDICTION
This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales as regards any dispute or proceedings arising out of or in connection with this Agreement.
18. ENTIRE AGREEMENT
Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the parties with respect to the subject matter herein and supersedes all prior proposals, understandings and all other agreements, oral and written. This Agreement may not be modified or altered except by a written instrument duly executed by both parties.
Any notice required or permitted under the terms of this Agreement shall (unless otherwise provided) be either via email or via the company dashboard
The headings of the sections of this Agreement are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of this Agreement.
In the event that any of these terms, conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
For the purposes of this Agreement, the following terms shall have the following respective meanings:
'Authorised Channels' means all means of online and electronic distribution, including online or remote access and electronic download via the Internet, mobile networks and wireless networks, whether existing now or invented in the future;
'Content' means all content within Digital Titles;
'Digital Titles' means such eBook titles as are agreed from time to time between the Client and the Company;
'Ancillary Services' means Additional Ancillary Services (Section 3): Any additional services, including but not limited to; conversion of formats, re-purposing of material, application development, consulting and marketing and promotional work. Any such work must be agreed upon between both parties and will be invoiced separately by the Company
'Frequency of Payment' (Section 6[d]): The Company undertakes to provide the Client with a self billing invoice on a monthly basis, provided the minimum threshold (£50.00) has been reached. payment will be issued within the following 14 working days. Payment will be made by direct bank tranfer monthly.
'DRM technology to be utilised' (Section 9): the Company uses the latest DRM technology in its distribution system. This is based upon the recognized Market Leader Technology – Adobe Content Server. This allows the Principal to set the options required in regards to sharing and printing. The default is no sharing, no printing.
'Payment terms' the Company's eBook management services are supplied on a monthly basis. Payment is made on or around the 15th day of each month and a self billing invoice is supplied by the company. Termination matters are dealt with in 2 (a) and payment on sales addressed in 6 (d).