TERMS OF SERVICE
The following terms and conditions (these “Terms”) govern your use of the BiblioCrunch.com website (referred to as the “Site”) as well as the content, products, software, source code and services made available through the Site, BiblioCrunch™ mobile applications or affiliate websites (collectively, including the Site, the “Services”) by the Site’s owner, BiblioCrunch, Inc. (“BiblioCrunch”).
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING ANY SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS, AS THEY MAY BE MODIFIED OR AMENDED FROM TIME TO TIME BY BIBLIOCRUNCH IN ITS DISCRETION. ANY SUCH AMENDMENTS TO THESE TERMS BECOME EFFECTIVE AT THE TIME THEY ARE POSTED TO THE SITE, AND EACH TIME YOU ACCESS OR USE ANY SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AS AMENDED. IF YOU DO NOT AGREE, YOU SHOULD DISCONTINUE USE OF THE SITE AND ALL OTHER SERVICES IMMEDIATELY.
The words “we”, “us” and “our” means BiblioCrunch. The words “User”, “you” and “your” refers to the person accessing or using the Services subject to these Terms. To the extent you access or use the Services in an agent or employee capacity, you also accept these Terms on behalf of your principal or employer. If your principal or employer has entered into a written agreement with BiblioCrunch for the provision of Services, then such written agreement will govern your use of the Services on behalf of such principal or employer.
These Terms are divided into 3 main parts:
(A) Terms governing use of the Marketplace, where you can find or offer freelance services relating to the creation and marketing of eBooks;
(B) Terms governing our Publication Services, relating to publication and sale of your eBook; and
(C) Terms governing the use of all our Services generally
Please read each section carefully as it relates to your intended use of the Site and Services.
A. Terms governing use of the Marketplace
Purpose of the Marketplace
1. The “Marketplace” refers to those Services and portions of the Site that (a) enable service providers, agencies and freelancers (collectively, “Contractors”) who offer services relating to the creation, marketing and distribution of eBooks to post their profiles and offer their services to eBook authors and others wishing to engage a Contractor (collectively, “Authors”, and together with Contractors, “Users”); (b) allow Authors to post jobs, solicit and review bids and purchase services from Contractors; and (c) allow Users to manage their jobs, service contracts and related payments.
2. If an Author accepts a Contractor’s bid for a job, a service contract is formed directly between such Author and Contractor (a “Contract”). All Contracts between any Author and Contractor shall be governed by the terms of the Marketplace Standard Agreement set forth below and incorporated herein by reference (the “Standard Terms”).
3. Each User agrees and understands that: (i) the Marketplace is merely a venue where Users may conduct business as Authors or Contractors; (ii) BiblioCrunch is not a party to any Contracts between Authors and Contractors; (iii) Users are not employees or agents of BiblioCrunch and BiblioCrunch does not, in any way, supervise, direct, or control a User’s work or Services; (iv) BiblioCrunch shall not have any liability or obligations under or related to Contracts or any acts or omissions by Users; (v) BiblioCrunch has no control over Contractors or over the services promised or rendered by Contractors; and, (vi) BiblioCrunch makes no representations as to the reliability of any Contractor or the quality, security or legality of a Contractor’s services, and BiblioCrunch disclaims any and all liability relating thereto.
4. An Author and Contractor may agree to terms in their Contract that supplement or modify the Standard Terms; however, nothing in such Contract will in any way limit or modify BiblioCrunch’s rights or the Terms governing any party’s use of BiblioCrunch Services. These Terms will govern and supersede any term or condition in any side agreement between any Author and Contractor that purports to expand BiblioCrunch’s obligations or restrict BiblioCrunch’s rights under these Terms.
Posting a Job or Profile
5. All jobs posted to BiblioCrunch must be in English and not contain any information enabling or requesting a contact or payment outside of the Marketplace. Job postings must be of a professional nature and accurately describe the services requested. They should be free of offensive language or advertisements for other products or services. Job postings may not request any service that is illegal or violates intellectual property rights, copyrights or the terms of service of another service, product or website.
Contractor Profiles and Bids
6. All information provided in a Contractor profile and bid for any job must be true, accurate and complete. BiblioCrunch reserves the right to verify any and all information provided on a User’s profile.
7. Authors agree to regularly review bids and interim work product and respond promptly to communications with and requests for information from the Contractor. Contractors are responsible for providing all tools and resources necessary to complete each Contract, unless explicitly stated in advance by the Author. Contractors agree to promptly respond to all Author communications and requests for information.
Marketplace Payments and Accounts
8. As part of its Services, BiblioCrunch collects payments from Authors on behalf of Contractors. Each Author hereby authorizes BiblioCrunch to run credit card authorizations on all credit cards provided by Author, to store credit card details as Author’s method of payment for services, and to charge Author’s credit card (or any other form of payment authorized by BiblioCrunch or mutually agreed to between Author and BiblioCrunch). BiblioCrunch charges Contractors a fee for our Services including but not limited to maintaining the Marketplace and collecting amounts owed by Authors and remitting them to Contractors. The Marketplace fees charged to Contractors are posted at this page of our website: http://bibliocrunch.com/pricing/. All payments between Users and BiblioCrunch are made and processed through PayPal.
9. We do not guarantee User performance or payments. BiblioCrunch cannot and does not warrant or guarantee that a Contractor’s services will meet an Author’s expectations or requirements. Contractors agree that BiblioCrunch does not guarantee or warrant payment under any Contract. All disputes with respect to Contract obligations must be resolved independently by the Users who are parties to such Contract. All BiblioCrunch fees and charges are non-refundable, whether or not Contracts were satisfactorily completed.
10. Authors in their discretion may agree to pay Contractors with active BiblioCrunch premium subscriptions for Contractor services without using the BiblioCrunch payment system. In these cases, Authors may pay Contractors using any means that the parties agree. Except in the case of such arrangements between subscriber-Contractors and Authors outside the Marketplace, Authors shall make all payments relating to, or in any way connected with, a Contract (including, without limitation, bonuses) through the Marketplace. Any action that encourages or solicits complete or partial payment outside of the Marketplace is a violation of these Terms. Any Contractor without a premium subscription that violates this section shall be liable to BiblioCrunch for (a) the full amount of fees that would have been due to BiblioCrunch had all payments been processed through the Marketplace plus (b) all costs and expenses incurred by us in connection with enforcement of these Terms but in any case not less than two times the average annual fee paid by Contractors with premium subscriptions.
11. If an Author fails to pay amounts due under these Terms, whether by cancelling a credit card, initiating an improper charge back, or any other means, Author’s BiblioCrunch account will be suspended, no additional payments will be processed, and any work-in-progress within BiblioCrunch’s control will be stopped. Without limiting other available remedies, Author must reimburse BiblioCrunch for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, BiblioCrunch may set off amounts due against other amounts received from or held for Author, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
12. Each Contractor must properly discharge and credit its Author for all payments BiblioCrunch remits on behalf of such Author. Each User understands and agrees that:
A. Funds collected from Authors are commingled in an account maintained by PayPal and disbursed directly from PayPal to Contractors, net of BiblioCrunch service fees.
B. The transmission of funds in the manner described herein is not a separate and discrete service that BiblioCrunch provides in addition to its Marketplace services. Rather, transmission of funds in an auditable manner is an integral part of the Marketplace services that BiblioCrunch is providing.
C. BiblioCrunch acts as agent of the Contractor and not as a trustee or fiduciary with respect to payments received through BiblioCrunch.
13. You agree that you will not receive interest or other earnings on the funds that BiblioCrunch handles as your agent and holds in comingled PayPal or other accounts. In consideration for your use of the Marketplace, you irrevocably transfer and assign to BiblioCrunch any ownership right that you may have in any interest that may accrue on funds held in such accounts. This assignment applies only to interest earned on your funds, and nothing in these Terms grants BiblioCrunch any ownership right to the principal of the funds you maintain with BiblioCrunch.
14. BiblioCrunch will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Author and Contractor are solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Contractor’s performance of Services.
15. BiblioCrunch shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Contractor Fees. Instead, Contractor shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Contractor Fees and for issuing any invoices so required. Contractor shall be solely responsible for: (a) determining whether Contractor or BiblioCrunch is required by applicable law to remit to the appropriate authorities any value added tax, sales tax or any other taxes or similar charges applicable to Contractor’s services, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or BiblioCrunch, as appropriate; and (b) determining whether BiblioCrunch is required by applicable law to withhold any amount of the Contractor fees, notifying BiblioCrunch of any such requirement and indemnifying BiblioCrunch (either by permitting BiblioCrunch to offset the relevant amount against a future payment of Contractor fees or by refunding to BiblioCrunch the relevant amount, at BiblioCrunch’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities.
16. For Contracts classified as independent contractor relationships, Author may not require an exclusive relationship between Author and Contractor. A Contractor classified as independent contractor is free at all times to provide services to persons or businesses other than Author, including any competitor of Author.
17. Author and Contractor agree to indemnify, hold harmless and defend BiblioCrunch from any and all claims arising out of or related to their Contract, including but not limited to claims that Contractor was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Contractor was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that BiblioCrunch was an employer or joint employer of Contractor, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits
18. An “Agency” is an organization that uses the Marketplace to offer services of one or more Agency Contractors. An “Agency Contractor” is a Contractor that is employed by or under contract to do work on behalf of an Agency. If a Contractor wishes to subcontract with third parties to perform Services on behalf of the Contractor, the Contractor must do so as an Agency. Each Agency and Contractor shall take reasonable steps to ensure that Contractor profiles on the Site accurately reflect the current status of each Contractor’s affiliation with any Agency. Users agree to notify BiblioCrunch immediately of any profile that contains false information with regard to the relationship of any Contractor with any Agency. Each Contractor and Agency agree and acknowledge that an Agency’s employees or contract personnel are not employees of BiblioCrunch or Author. Agency is solely responsible for all wages, costs, and expenses of Agency’s employees or contract personnel and has the sole and exclusive right to supervise and control them. Neither Author, nor BiblioCrunch, will require Agency’s contract personnel to devote full time to performing the Contracts entered into by Agency under these Terms. Furthermore, both Contractor and Agency acknowledge and agree that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits of any kind from BiblioCrunch or Author.
19. Author and Contractor each shall (i) create and maintain records to document satisfaction of its obligations under these Terms and each Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to BiblioCrunch upon request.
Enforcement of User Agreement and Policies
20. BiblioCrunch has the right, but not the obligation, to suspend or cancel your access to the Marketplace if it believes that you have violated or acted inconsistently with the letter or spirit of these Terms or violated our rights or those of another party. Without limiting BiblioCrunch’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the Marketplace to you if (a) you breach these Terms or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for BiblioCrunch. Once suspended or terminated, you may not continue to use the Marketplace under a different account or reregister under a new account. If you attempt to use the Marketplace under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts outstanding. When your User account is canceled, you may no longer have access to any parts of the Marketplace, including data, messages, files and other material you keep on BiblioCrunch.
a. Performance and Compensation.
Contractor agrees to perform the job and complete the Contract in a timely and professional manner consistent with industry standards, and at a location, place and time that Contractor deems reasonably appropriate. In completing the Contract, Contractor agrees to provide its own personnel, equipment, tools and other materials at its own expense. Contractor may not subcontract or otherwise delegate its obligations under this Agreement without Author’ prior written consent. Author will pay Contractor for services and job deliverables rendered as set forth in the Contract. In the event of termination of services or this Agreement prior to completion of the Contract for any reason other than Contractor’s non-performance or breach, Contractor will be paid fees on a proportional basis for work which is then in progress, to and including the effective date of such termination.
b. Ownership of Work Product.
Contractor agrees that all works of authorship, notes, records, drawings, designs, improvements and ideas made by Contractor, its employees and permitted subcontractors, solely or in collaboration with others, in furtherance of the job rendered hereunder (collectively, “Work Product”), are the sole property of Author. In addition, any Work Product which constitutes works of authorship shall be considered “works made for hire” as that term is defined in the United States Copyright Act. Contractor further agrees to assign (or cause to be assigned) and does hereby assign fully to Author all Work Product and any copyrights, mask work rights or other intellectual property rights relating thereto. To the extent any right to any Work Product cannot be assigned to Author or waived by Contractor, Contractor unconditionally grants to Author a non-exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sub licensees, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed, such rights.
Contractor agrees to assist Author, or its designee, at Author’s expense, in every proper way to secure Author’s rights in the Work Product and any copyrights, mask work rights or other intellectual property rights relating thereto in any and all countries, including the disclosure to Author of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which Author shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to Author, its successors, assigns and nominees the sole and exclusive right, title and interest in and to such Work Product, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.
Contractor agrees that if in the course of performing the job, Contractor incorporates into any Work Product developed hereunder any works or other proprietary information owned by Contractor or in which Contractor has an interest, Author is hereby granted and shall have a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, modify, use and sell such item as part of or in connection with such Work Product.
Confidential Information. During the term of this Agreement, each party to this Agreement (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain confidential and/or proprietary information. “Confidential Information” shall mean any and all tangible and/or intangible information, whether written, spoken, graphic or in any other medium, originated by or uniquely within the knowledge of the Disclosing Party and not generally available to others. Confidential Information may include, without limitation, any and all trade secrets, know-how, designs, and drafts. Without limiting the generality of the foregoing, all non-public materials furnished to Contractor by Author to facilitate performance of the Contract will be treated as Author Confidential Information and shall be returned to Author or destroyed by Contractor upon completion of services, termination of this Agreement or Author’s direction.
Restrictions on Use and Disclosure. The Receiving Party acknowledges the confidential and proprietary nature of the Confidential Information and agrees (i) it will handle all Confidential Information in the same manner that it handles its own confidential information of like importance (but not less than a reasonable degree of care); and (ii) absent the prior express written consent of the Disclosing Party, it shall not reveal or disclose any Confidential Information to any person, firm, corporation or other entity or use any Confidential Information for any purpose, except in response to any valid court order, subpoena or document discovery request, provided that prior written notice of such disclosure is furnished to the Disclosing Party as soon as practicable in order to afford the Disclosing Party opportunity to seek a protective order.
Exclusions. The confidentiality obligations hereunder shall not apply to information that: (a) at or prior to the time of disclosure by the Disclosing Party, was known to or in the possession of the Receiving Party on a non-confidential basis; (b) at or after the time of disclosure by the Disclosing Party, becomes generally available to the public other than through any act or omission on the part of the Receiving Party; (c) is developed by the Receiving Party independent of any Confidential Information it receives from the Disclosing Party; or (d) the Receiving Party receives from a third party free to make such disclosure without breach of any legal obligation of confidentiality concerning such information.
Injunctive Relief. Each party acknowledges and agrees the use or disclosure of Confidential Information inconsistent with this Agreement could cause irreparable harm to a Disclosing Party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any remedies available at law, any non-breaching party shall have the right to obtain immediate injunctive relief, without the necessity of posting a bond, in the event of a breach or threatened breach of this Section c by the other party, any of its affiliates or their representatives.
d. REPRESENTATIONS & WARRANTIES.
Contractor hereby represents and warrants that (a) Contractor has full right and power to enter into and perform this Agreement without the consent of any third party; (b) Contractor will perform the services in a professional and workmanlike manner; (c) it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude Contractor from complying with the provisions hereof; (d) during the term of this Agreement, Contractor shall not accept work or enter into a contract or obligation inconsistent or incompatible with Contractor’s obligations under this Agreement or the scope of services rendered for Author; (e) Contractor shall not disclose to Author or induce Author to use any confidential information that belongs to anyone other than Author or Contractor; and (f) no job deliverables or Work Product transmitted or delivered by Contractor pursuant to this Agreement infringe on or violate any copyright, trademark, or other intellectual property or proprietary rights of any third party. Subject to the above representations and warranties, Author assumes all responsibilities and risks associated with Author’s publication or use of Work Product.
Independent Contractor. Contractor’s relationship with Author will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship. Contractor represents and warrants that it shall not make any commitment or representation, express or implied, on Author’ behalf or to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, Author except as expressly authorized in writing by Author.
Governing Law. This Agreement will be governed and construed in accordance with the internal laws of the State of New York without regard to its conflict of laws rules.
Non-Assignable by Contractor. Contractor may not assign or transfer any of its rights or obligations under the Contract. Any attempt to assign or transfer any rights or obligations under this Agreement in violation of this Agreement shall be void and of no effect.
B. Terms governing use of Publication Services
Publishing Your Work – Your Responsibilities
21. You may use our Services pursuant to these Terms to upload, format and publish original works of authorship (your “Work”). Except as set forth herein, you will retain all rights in your Work, including the copyright; posting your Work on the Site does not change your ownership rights. You are solely responsible for filing all copyrights relating to your Work and for protecting and enforcing your copyrights and any other intellectual property. It is your responsibility to place a copyright notice on the copyright page or some other prominent place in the Work.
22. By posting or uploading any Work on the Site: (i) you understand that if your Work complies with these Terms, your Work may be made accessible to Users of the Site and Users will be able to review, comment on it and rate it; (ii) you represent and warrant that you own or control all rights in your Work, that such Work is original and does not, and will not, infringe the copyright, trademark or any other right of any person or entity, and that any “moral rights” in the Work have been waived; and (iii) you grant to us a non-exclusive, worldwide, irrevocable, perpetual, transferable right and license to display, distribute, publish, market and sell the Work on the Site in accordance with these Terms and the policies and procedures posted within the Site.
23. SAVE ALL YOUR CONTENT – WE ARE NOT RESPONSIBLE FOR LOSS OR CORRUPTION OF YOUR FILES. If you use our Services for publishing any Work, you are and remain solely responsible for the protection and preservation of your Work. You should only upload and post copies of Work that you have stored on your own computer. Since computers and other equipment (both yours and ours) are subject to occasional malfunction, you agree that you will not hold BiblioCrunch responsible for any inadvertent damage to, corruption of or destruction of your Work or any other Content. BiblioCrunch is not responsible for backing up or archiving your Work. If your Work is damaged, lost or corrupted in any way while being transmitted, processed or stored using our Services, BiblioCrunch will have no obligation or liability to you.
24. Generally, BiblioCrunch will publish Work as it is delivered to us, and not edit or modify the Work. Certain modifications may occur caused by file or design conversions. BiblioCrunch does not guarantee accurate preservation of the original Work’s formatting. Because BiblioCrunch provides a creator-controlled publishing tool, BiblioCrunch cannot and does not accept responsibility for the quality of any Work (including misspelled words, grammatical errors, factual errors, poor quality pictures, etc.), its formatting, design or overall appearance. Users are responsible for the visual presentation and content of any Work they submit for publication.
25. BiblioCrunch may decide not to publish a Work or may decide to discontinue its publication for any reason and for no reason, and no reason need be provided. Except in the cases of gross violations of these Terms, BiblioCrunch will make every attempt to provide reasonable notice to you via email, up to and including providing instructions on how to remedy potential issues that might prevent BiblioCrunch from publishing your Work.
26. We reserve the right to drive traffic to a Work on the Site through (a) general Search Engine Optimization services, (b) crawlable, promotional hypertext links or (c) arrangements with third parties which make searchable certain sample portions of the Work.
27. Except as provided in these Terms, BiblioCrunch shall only publish electronic versions of a Work, and keeps no other subsidiary rights to the Work including hardcover or paperback editions, audio editions, multimedia editions, theatrical editions, first and second serial rights or media rights other than the electronic version distributed on our Site.
Publication Fees, Sales and Royalties
28. BiblioCrunch’s applicable service fee will be among the items you will be asked to approve during the publishing process. Our publication fees are posted at http://bibliocrunch.com/pricing/.
29. So long as the proper copyright protection subsists in a Work, no infringement notices have been filed, and revenues directly attributable to the Work are being collected by BiblioCrunch, then, on a quarterly basis, we will remit to your account the balance of royalties due from the sale of your Work, net of our fees and other charges as set forth below.
30. No later than 31 days after the end of each calendar quarter, BiblioCrunch will make a good faith effort to pay you the royalty that accrued to your account during that month, using the contact information in our records. All payments are made through PayPal. If BiblioCrunch owes you less than $10 for sales within a given month, we reserve the right, at our discretion, to roll your royalty forward to the following month until $10 is reached. It is your responsibility to update your contact information if it changes. If your account is inactive or terminated and we are unable to contact you using the contact information provided, we may also, at our discretion, charge a termination fee equal to the amount of unpaid royalty to cover administrative costs.
31. If you sell your Work using our Services, BiblioCrunch may require you to provide additional taxpayer information as required by the United States Internal Revenue Service (“IRS”) for the purposes of information reporting and withholding.
32. Royalty Rates. BiblioCrunch agrees to pay the author or publisher of each Work (i.e. the User who submits the Work)up to eighty-five percent (85%) of net proceeds received by BiblioCrunch through the sale or licensing of the Work (“List Price”). “Net proceeds” shall mean the sales price paid and received less payment processing fees, affiliate fees, retailer discounts, costs due to erroneous or fraudulent transactions, credit card charge-backs and associated fees. Therefore, 85% of “net proceeds” does not equal 85% of an eBook’s sales price. Payment processing fees, for example, may account for a sizable percentage of the List Price for lower cost books because they include a nominal minimum per-transaction fee ranging charged to BiblioCrunch by our payment processing service PayPal. For example, if the per-transaction fee charged by our payment processor is $.35, and a book is only priced at $1.00, then that $.35 accounts for 35 percent of the retail price. BiblioCrunch fully discloses and estimates anticipated payment processing fees and estimated proceeds at the time you assign pricing for your Works.
33. Sales transacted at the BiblioCrunch.com web site are reported in real time. Sales reporting for sales transacted via BiblioCrunch retail distribution partners are reported when the retailer reports back to BiblioCrunch, usually once per quarter.
Requirements regarding your Works
34. By submitting Your Work to BiblioCrunch for publication, you warrant and represent that the Work is complete and the author identified by you at the time the Work is submitted:
A. is the only author of the Work;
B. is the sole owner of the rights herein granted;
C. has not assigned, pledged, or encumbered such rights or have not entered into any agreement which would conflict with the rights granted to BiblioCrunch herein; and agrees not to do any of the aforementioned without first removing the Work from the Site; and
D. has full right, power, and authority to enter into these Terms, use the Services and grant the rights granted herein
35. You further warrant that the Work contains no content which:
• violates any right of privacy which is libelous or violate any personal right or other right of any kind of any person or entity (this includes publishing a person’s private email address without their permission;
• plagiarizes or pirates any other work or infringe upon any copyright, trademark or other proprietary right;
• would be dangerous or injurious to Users or others, including from the use of recipes, formulae or instructions
• violates state and federal laws
• advocates hateful, discriminatory or racist views or actions toward others
• advocates or condones violence against another person, whether or not the other party is a willing participant
• advocates illegal activities
• advocates the use of Private Label Rights (PLR) content to make money on the Internet, or the modification of such content for the creation of Internet content
• contains images or illustrations depicting individuals perpetrating graphic violence upon another individual or individuals
• contains hyperlinks to affiliate marketing pages, especially if the eBook is published for the sole intent of publishing hyperlinked content that directs readers to affiliate marketing pages
• advocates or promotes “systems” about how to make money on the Internet by publishing eBooks
• contains SEO keyword spam, either in your manuscript or your metadata tags
• contains advertisements for services, or partial books for the purpose of promoting the purchase of the same book elsewhere or on BiblioCrunch
• if you publish erotica content, neither the book cover nor the book interior may contain graphic images of nudity (either photographic or illustrated) or persons involved in sex acts, and does not include children or underage minors engaged in sexual acts or situations, witnessing such situations, considering sexual acts, or thinking about sexual acts. Fine art books of a non-erotic nature that contain nudity may be accepted on a case by case basis at the sole discretion of BiblioCrunch and/or its retail partners
• is not the same book you previously published at BiblioCrunch, then republished as a new book for the sole purpose of having it appear as a new book again.
36. You further warrant your Work meets the following standards for originality:
• it is not a public domain work;
• the Work does not include word-for-word scrapes – or is not a compilation – from Wikipedia or other public domain, government or commercial services;
• your Work does not and will not appear elsewhere on the Internet authored by people other than yourself or by pen names (pseudonyms) different from your pen name at BiblioCrunch;
• none of your Work content, either in part or in its entirety, is sourced from “Private Label” rights articles, article “spinners,” or eBooks or information sources which license the same content to other people; and
• the Work does not contain or comprise machine-generated language translations (all translated books must be human-translated and edited, not translated by language translation software such as Google Translate).
37. You will have the right to terminate your membership at any time, by clicking on the “Deactivate my account” button on your profile page. We will remove your Work and terminate your membership as soon as practicable following receipt of your request. Once we remove your Work from the Site, it will not be retrievable, even if you reactivate your account. However, the inclusion of some Content on the Site (e.g., comments you may post on the Site) may be perpetual and irrevocable.
Purchasing eBooks. Users who purchase a Work on the Site are allowed to use each copy of the Work in any non-commercial manner in compliance with copyright law and pursuant to these Terms.
Rights of Use. As an End User, you acknowledge that all Works are licensed for the use of the End Users of the Site and may not be sublicensed or resold. If you purchase a work, you hold a non-exclusive, non-transferable, and non-distributable right of use. In other words, you are free to enjoy it for your own use, but you are not authorized to transfer, sell, or distribute the Work (or any portions or copies of the Work) to others.
Fees and Services. Authors set the price for their individual Works. All purchases are final and non-refundable. The Site may change pricing policies and fees for Services we provide at any time from time to time and changes shall be effective immediately. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with your use of the Site.
Information about you
38. You agree the information you provide when you register to use the Services will be true and accurate and kept up to date by you. You agree not to enter false information or impersonate any other person when you use the Services. You must be 18 years of age or older to use the Services.
Use of Services
40. You agree to use the Services only for lawful business purposes and not for any illegal or unauthorized purpose. You shall not upload or otherwise transmit to or through the Services any viruses or other malicious software code. You will not do anything to disrupt the operation of the Services, interfere with anyone’s use of it, corrupt or change the contents of the Site, damage the systems running the Services, or otherwise do harm to the Services and their normal operation. You will not access the non-public areas of the Site for any reason except as permitted by us using your BiblioCrunch login credentials. You may access Services only through the Site portals made available to you for such purpose. Accessing Services using web robots or other automated access methods is prohibited.
41. We may provide you with one or more user ID’s, initial passwords and/or other credentials for you to access the Services. It is your sole responsibility to keep all user IDs, passwords and other means of access to the Services within your possession or control confidential and secure from unauthorized use. All identity information associated with a BiblioCrunch User account must be real and verifiable. Each BiblioCrunch User account must be used by only one person, and each person is allowed to use only one User account. BiblioCrunch reserves the right to validate User information at any time by any lawful means.
42. BiblioCrunch is not a personal services company and does not provide eBook services or manage, review or supervise individual Contractors or their work. We are not legally responsible for any remarks, information or other content posted or made available on the Site by any User or third party, even if such information or content is defamatory or otherwise legally actionable.
43. Users agree to use good judgment when posting information, comments, feedback or other content regarding other Users, BiblioCrunch or any third party anywhere within the Site. Users may be held legally responsible for damages suffered by other Users, BiblioCrunch or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the Site. Any offer, attempt or act to falsify feedback, manipulate or coerce another User by threatening negative feedback or sell or buy services in exchange for feedback is prohibited. We reserve the right to remove or restrict access to any information or content posted or made available on the Site if ordered to do so by a government authority or if BiblioCrunch considers such information or content to be in violation of these Terms.
45. You agree not to use or permit the use of the Services directly or indirectly for any of the following:
A. Disclosing personally identifying information or private information of any person without his or her consent;
B. Posting or sending material that is grossly offensive, obscene, lewd, lascivious, pornographic, profane or violent, harassing or otherwise objectionable, libelous, defamatory or threatening or that promotes or encourages hatred, violence, racism or criminal conduct;
C. Uploading or spreading computer viruses, worms, Trojan horses, spyware or other harmful code;
D. Infringing the intellectual property rights or misappropriating trade secrets of any third party;
E. Fraudulently inducing the purchase of goods or services or disclosure of information by any User;
F. Selling or marketing illegal products or services;
G. Selling or marketing products or services or soliciting funds or information in a manner that is prohibited by applicable law or regulation;
H. Deceiving any other user of the Services regarding the identity of you or your organization.
Ownership of Services
46. BiblioCrunch is only providing you with the right to access and use the Services. BiblioCrunch retains sole and exclusive ownership of and all right, title, and interest in and to the Services (including ownership of all trade secrets, trade dress, copyrights, and other intellectual property rights and interests pertaining to the Services, but not including your Content) and to all modifications and enhancements of the Services, subject only to the rights and privileges expressly granted to you under these Terms. In addition, the Services are presented with a distinctive “look and feel,” and this “look and feel” is the proprietary property of BiblioCrunch. BiblioCrunch reserves all rights in and to the Services not expressly granted under these Terms.
47. The Services are protected by U.S. copyright laws and international treaty provisions. You may not use, copy, modify, or distribute the Services (electronically or otherwise), including the source code for any portion of the Services, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by us in writing. You may not modify, reverse engineer, disassemble, decompile, translate, create derivative works from, or otherwise alter the Services. You may not transfer, lease, assign, rent, or sublicense the rights granted to you under these Terms, or make the Services available for the use of others through your User ID. You may not use any portion of the Services or any standalone utility provided for use with the Services for any purpose other than its intended purpose.
48. You shall not remove, modify or copy any BiblioCrunch or third party trademarks accessed through the Site. All third party marks are the properties of their respective owners and may be used by you only in connection with use of the Services and for no other purpose whatsoever.
49. The Site and any Services may be modified, revised, suspended or discontinued in whole or in part, either temporarily or permanently, with or without notice, in our discretion. No resale, sale or use for commercial purposes of any portion of the Services is authorized or permitted except with our prior written consent in each instance. We reserve the right in our discretion to deny access to the Services by or through any person, network or device.
Third-party content and services
50. We assume no responsibility or make any representation or warranty with respect to websites or services owned and operated independently by third parties (including but not limited to our partners or affiliates) which may be accessed by you or other users through links on the Site or otherwise from the Services.
51. We will not knowingly publish content in violation of applicable copyright law. If you believe content has been displayed, reproduced, printed or otherwise distributed by us through this website in violation of any third party copyright, please notify us in writing. Send your notice to BiblioCrunch, PO Box 286936, New York, NY 10128, attention: chief legal officer, and include the following:
A. electronic or physical signature of a person authorized to act for the copyright owner
B. description of the copyrighted work
C. description of where the infringing content is located on this website
D. your office or home address, telephone number and email address
E. a statement of good faith belief that the use of the work is not permitted by the copyright owner, and
F. a statement under penalty of perjury that the above is true and you are authorized to act for the owner.
52. THE SERVICES MAY INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR ERRORS. NOT ALL DATA OR COMMUNICATIONS SENT THROUGH THE SERVICES WILL BE RECEIVED BY OR WILL BE CAPABLE OF BEING VIEWED BY THEIR INTENDED RECIPIENTS. OUR SYSTEMS MAY NOT PREVENT THE CORRUPTION OR LOSS OF YOUR CONTENT. THE SERVICES MAY NOT BE COMPATIBLE WITH YOUR COMPUTER SYSTEMS. WE ASSUME NO LIABILITY FOR SUCH INCIDENTS OR CONDITIONS. ALL SERVICES, INCLUDING BUT NOT LIMITED TO CONTENT POSTED BY YOU OR OTHER USERS, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY OF NON-INFRINGEMENT.
53. WITHOUT LIMITING THE FOREGOING, BIBLIOCRUNCH MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, OR (II) SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
LIMITATION OF LIABILITY
54. EXCEPT FOR CLAIMS OF A NATURE THAT APPLICABLE LAW DOES NOT PERMIT TO BE MADE SUBJECT TO THE WITHIN LIMITATIONS, BIBLIOCRUNCH, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, PUNATIVE OR INCIDENTAL DAMAGES OF ANY KIND RELATING TO YOUR USE OF THE SERVICES. FURTHERMORE, EXCEPT FOR CLAIMS OF A NATURE THAT APPLICABLE LAW DOES NOT PERMIT TO BE MADE SUBJECT TO THE WITHIN LIMITATIONS, THE MAXIMUM LIABILITY OF BIBLIOCRUNCH, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FOR ANY CLAIMS ARISING FROM OR RELATING TO YOUR USE OF THE SERVICES SHALL NOT EXCEED THE TOTAL FEES AND CHARGES EARNED, RECEIVED AND RETAINED BY BIBLIOCRUNCH RELATING DIRECTLY TO YOUR USE OF THE SERVICES WITHIN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
55. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF CLAIMS OR DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO ALL LIABILITIES.
56. You agree to indemnify and hold harmless BiblioCrunch, its subsidiaries, affiliates, directors, officers and employees, from and against any and all liabilities, damages, losses, costs or expenses (including but not limited to reasonable attorneys’ fees) arising from or relating to any third party claim, action, proceeding, investigation or demand asserted against BiblioCrunch based on: (a) any actual or alleged infringement of any intellectual property rights or interests of any third party attributable to any Work or other Content uploaded, submitted, posted, published or distributed by you using the Services; (b) any breach of these Terms by you or anyone accessing the Services using your BiblioCrunch credentials; (c) any violation of law, regulation or third party rights in connection with your use of the Services; or (d) any complaint by any User with respect to your Content or any actual or alleged agreement or transaction made or performed using the Services.
57. Your right to access and use Services shall terminate immediately upon your breach of any Terms. In the event of termination of your rights or our Services for any reason, you will continue to be responsible for compliance with applicable laws and regulations regarding the publication and use of your Work and other Content, and for any damages and indemnification obligations resulting from your use of the Services.
58. Your access to and use of the Services is also governed by information, guidelines and policies made available on the Site. To the extent that there are any conflicts between the terms and conditions of these Terms and the Site, these Terms will govern. Nothing express or implied in these Terms is intended to confer, nor shall anything herein confer, upon any person other than the parties and their respective permitted successors or assigns, any rights, remedies, obligations or liabilities whatsoever. You may not assign any of your rights hereunder and any purported assignment by you shall be invalid. We may assign any and all rights or obligations under these Terms in our discretion.
59. If you are provided with any standalone software utilities for use with the Services, you acknowledge that these utilities may be subject to regulation by local laws and United States government agencies which prohibit export or diversion of certain products, information about the products, or direct products of the products to certain countries and certain persons. You represent and warrant that you will not export or re-export such software in violation of these regulations to a national destination prohibited under these regulations or to any person to whom exports, re-exports or transfers are prohibited under these regulations.
60. You are prohibited from using the Site and Services if you are (a) a citizen or resident of a country in which such use is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes, including without limitation Cuba, Iran, North Korea, Sudan and Syria; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
61. You acknowledge that your breach of any of the provisions of these Terms may cause immediate and irreparable harm to BiblioCrunch for which BiblioCrunch may not have an adequate remedy in money or damages. We will therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request and will be entitled to recover from you the costs incurred in seeking such an injunction. BiblioCrunch’s right to obtain injunctive relief will not limit its right to seek or obtain further remedies.
62. Should any part of these Terms be rendered or declared invalid by a court of competent jurisdiction, such invalidation of such part or portion of these Terms should not invalidate the remaining portions thereof, and they shall remain in full force and effect.
63. These Terms shall be governed by and construed in accordance with the laws of the State of New York without regard to its choice of law principles. By using this Site and/or providing us with your personal information, you waive any claims under the laws of other countries or territories located outside of the United States or states other than New York relating to our provision of Services or processing of your information pursuant to these Terms. Persons who access the Site from other locations do so on their own initiative, and are responsible for compliance with any applicable local laws. You agree that any dispute arising out of your use of the Site or these Terms will be finally determined by binding arbitration before a single arbitrator in accordance with the rules of the America Arbitration Association (including the Supplemental Procedures for Resolution of Consumer-Related Disputes if applicable). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration shall be conducted in the English language in New York, New York.
Please direct questions about these terms & conditions to info [at] bibliocrunch [dot] com.
Updated September 4th, 2012
© 2012 BiblioCrunch, Inc.