This Service Agreement is made between Dream Books Distribution (the “Service Provider”) and you (the “Author”). The Service Provider and the Author may be referred to collectively as the Parties. Failure of either party to comply with the terms and conditions herein may result in the termination of the contract. The terms and conditions shall only be valid when you (the “Author”) agree by signing the Partnership and Marketing Service Forms.
- RIGHTS AND LICENSES
The Work is made up of intellectual property that may fall into four categories: (1) Service Inclusions; (2) Our Work Product; (3) Your property; and (4) Third Party Property.
Your materials includes the text of the Work, in its original form as submitted by You and as edited by Us during the fulfillment of editorial Services purchased by You, and graphics or other materials, all owned or authorized in writing by the owners to be submitted by You to be incorporated into the Work. YOU (AND/ OR THE PERSONS YOU ARE EXCLUSIVELY AUTHORIZED TO REPRESENT IN THIS AGREEMENT) WILL REMAIN THE SOLE AND EXCLUSIVE OWNER(S) OF ALL RIGHT, TITLE, AND INTEREST, INCLUDING COPYRIGHT, IN AND TO YOUR STORYLINE.
Our Work Product includes the book video design, graphical content, Screenplay and other content that We or Our Contractors create in the process of fulfilling the Services (with the exception of the text of the Work). Our Property includes Our imprint logos, imprint names, trademarks. You remain the sole and exclusive owner of all right, title and interest, including copyright, in and to Our Work Product and Your Property.
Third Party Property includes content that is owned by third parties that either We license, or You license or otherwise have permission to use in The Work. If You use of Third Party Property is subject to any restrictions (such as a limit on the number of reproductions of an image), You are responsible to ensure that You comply with those restrictions. All right, title and interest in Third Party Property shall remain with the respective Third Party. Third Party Property licensed to Us may be used only in the version of the Work (in any format) that We create and may not be removed or used in any other versions of the Work or other products or materials.
During the Term of this Agreement and for the purpose of fulfilling the Services purchased by You and complying with Our obligations under this Agreement, with respect to Your Storyline and Third Party Property licensed to You for use in the Work, You authorize, consent to and grant to Us and Our Contractors the following:
- The worldwide rights and license to display, exhibit, reproduce, digitize, modify, license, and otherwise use the information that You provide to Us about You (such as Your name or chosen pen name, image, likeness, appearance, voice, video footage, biographical and personal information, etc.) and information about the Work (such as the title, Your description of the Work, excerpts and images from the Work, etc.), in all materials created by Us or on Our behalf that incorporate any of the information above, in any format and in all media;
- The worldwide rights and license to send free review copies of the Work to members of media and other potential book reviewers or book sellers, in Our sole discretion;
- The worldwide rights and license to make excerpts or previews of the Work available for preview on websites or via other media, including the websites of certain retailers such as Amazon, Google, and Apple, in Our sole discretion;
- The exclusive, transferable, worldwide license to manufacture, store, use, display, execute, reproduce (in whole or in part), transmit, modify (for example, for formatting purposes or to create authorized derivative works), import, make, have made, offer to sell, market, sublicense, distribute, and sell (individually or as part of compilations of collective works), and license for use via any subscription model or lending model, through all distribution channels available now or at a later time, in any language, in any format, and via any medium, now known or hereafter devised, selected in Our sole discretion and consistent with the Services You purchase, the Work;
- During the transition period of ninety (90) days after termination of this Agreement, the non-exclusive, worldwide license to engage in the activities set forth above; and
- The right and license to compile and use statistical information regarding sales of the Work.
After this Agreement is terminated, We grant to You a non-exclusive, worldwide license to manufacture, store, use, display, execute, reproduce, transmit, import, make, have made, offer to sell, print, publish, market, sublicense, distribute, and sell Our Work Product and Third Party Property provided by Us only as it exists in the version of the Work that was created by Us. The re-sale of copies of the Work purchased previously by You or a third party is not subject to the terms of this Agreement.
We grant to You a perpetual, non-exclusive, irrevocable, worldwide license to use, store, display, reproduce, transmit, sell, print, publish, market, distribute, sub-license, transfer, and make or have made derivative works, for any purpose whatsoever, the custom illustrations that We create pursuant to this Agreement (“Illustrations”).
- FULFILLMENT OF SERVICES
Before We are required to begin fulfillment of the Services, You must submit to Us: (a) a Signed Partnership and Marketing Forms; (b) Marketing Questionnaires; and (c) full payment for the Services. We are not responsible for the unrealized mistakes upon submission of the questionnaire. We are not obligated to preserve or return Your Manuscript or any other submitted materials to You.
Your Manuscript and Work must comply with Our Content Guidelines and all applicable laws and regulations. We do not provide any legal advice regarding your intellectual property rights or other related legal rights with respect to any Submitted Materials. If You have questions regarding Your Manuscript or The Work’s compliance with applicable laws and regulations, such as copyright laws, rights of privacy and publicity, and libel/ defamation, You should consult an attorney for legal advice.
We reserve the right to conduct a content evaluation on Your Manuscript and The Work (“Content Evaluation”) solely and exclusively for Our internal purposes. If Dream Books Distribution, in its sole discretion, deems your manuscript to be unacceptable, we will notify you through email and request that you revise, correct, and/or supplement the Manuscript until it complies with our Content Guidelines, as set forth, including, but not limited to, restrictions regarding content. If You choose not make the necessary revisions to comply with Our Content Guidelines, You or We may terminate this Agreement.
You agree that We will determine the price at which to sell the various formats of The Work
When We have created The Work, We will provide You with an electronic copy for Your complete and thorough review prior to distribution. If, upon review, You are satisfied that each and every aspect of The Work is accurate, complete and meets Your expectations, and You acknowledge and accept the materials, You will sign all requested forms to indicate Your final approval and return them to Us in a timely manner. After Your final approval is given, You waive any and all claims against Us or Our Contractors arising from or related to any alleged errors, omissions or other content discovered in The Work after final approval. You are responsible for the Fees for any subsequent changes, corrections or other Services requested by You after final approval.
Upon final approval of the Work, We will make the Work available through Our website and Our Contractors, consistent with the Services purchased by You. We do not warrant that any particular Contractor will offer the Work for sale, as this is up to the sole discretion by You. If We receive a complaint from You or a third party regarding the Work, We may discontinue the distribution of the Work while We resolve the complaint.
- REPRESENTATIONS AND WARRANTIES
You represent and warrant the following:
- You are either the sole author and sole owner of all copyrights, or You are exclusively authorized in writing to represent all co-authors owning all copyrights to Your Manuscript, or You own all copyrights in it;
- You are either the owner of or You have secured permission to use any Third Party Property that You give to Us to include in the Work, and You can provide proof if such permission if requested;
- Your Storyline and the Work complies with all Content Guidelines and applicable laws and regulations; and You understand that You are solely responsible for ensuring that the Work complies with Our Content Guidelines and all applicable laws and regulations at all times;
- Your Storyline and the Work do not: (i) infringe on any copyright or other intellectual property rights; (ii) violate any right of privacy, publicity or other personal or property right whatsoever; (iii) contain any libelous matter or matter otherwise contrary to law; (iv) contain a recipe, formula, or instruction that may be injurious to the user; (v) contain any information of a third party deemed private by applicable law (such as social security numbers, dates of birth, or private financial or medical information); or (vi) contain any illegal content such as child pornography or similar materials.
- All statements in Your Storyline or the Work asserted as facts are based on Your careful investigation and research for accuracy;
- There have not been and are not now any pending or, to Your knowledge, threatened claims, litigation, or other proceedings pending against You with respect to the content or title of Your Storyline or the Work or other claims based on any facts that would constitute a breach of any of Your representations and warranties;
- All information in Your Manuscript or that You submit or communicate to Us is accurate; and You will immediately notify Us to update and/or correct any information which becomes inaccurate.
- Author acknowledges and agrees that the Services are designed to maximize a book’s publicity, but Service Provider does not guarantee results and/or increase in book sales and adaptation from a Third Party Film/Traditional Houses.
- Authors may suggest a specific launching date for the marketing service, but Service Provider does not guarantee fulfillment on the preferred date. All orders are scheduled according to a first-come, first-served basis.
- DISCLAIMER OF WARRANTIES
SALES ARE NOT GUARANTEED. WE MAINTAIN NO CONTROL OVER THE SUBJECTIVE PURCHASING DECISIONS OF CONSUMERS OR BOOKSELLERS, AND, CONSEQUENTLY, WE CANNOT AND DO NOT GUARANTEE SALES OF YOUR WORK. WE MAKE NO GUARANTEES OR PROMISES AS TO THE MINIMUM SUCCESS OF THE SERVICES OR THE AMOUNT OF BOOK SALES WHICH MAY RESULT FROM ANY OR ALL OF THE SERVICES.
GENERAL DISCLAIMER OF WARRANTIES. EXCEPT FOR ANY WARRANTIES OR REPRESENTATIONS EXPLICITLY SET FORTH IN THIS AGREEMENT, WE MAKE NO OTHER WARRANTY, AND EXPLICITLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF PERFORMANCE OR DEALING, CUSTOM OR USAGE IN THE TRADE, OR OTHERWISE) WITH RESPECT TO THE SERVICES, OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE, WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WARRANTY OF TITLE, AND WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
- WAIVER OF CLAIMS; INDEMNIFICATION
To the fullest extent permitted by applicable law, You hereby release, waive, discharge and covenant not to sue Us and Our Contractors for any liability to You, Your personal representatives, assigns, heirs, or successors in interest, or for any loss, damage or expenses, or any claims, demands or Actions therefore, arising from or related to, directly or indirectly, Our or Our Contractors’ use of the rights and licenses granted in this Agreement to fulfill the Services and other obligations under this Agreement, including, but not limited to, claims for copyright or trademark infringement, infringement of moral rights, defamation, invasion of rights of privacy, rights of publicity, intrusion, false light, public disclosure of private facts, physical or emotional injury or distress or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world. For purposes of this Agreement, “Actions” include any litigation, lawsuit or administrative, governmental or other proceeding including, but not limited to, government investigations, inquiries, hearings, and other requests, or any appeal thereof.
You acknowledge that You are solely and fully responsible for the content of the Manuscript and the Work and that We will not be liable to You, or to any third party or other person or entity for the content of Your Manuscript or the Work, regardless of whether We had any knowledge or could have reasonably known of any violation of Your above representations or that the Work or Manuscript otherwise violates law.
You will fully indemnify and hold harmless, Us and Our Contractors, and each such entity’s officers, directors, members, managers, employees, agents, insurers, contractors, attorneys, successors, and permitted assigns from and against any claim, cause of action, demand, Action, proceeding, losses, liability, cost, expense (including reasonable attorneys’ fees) or damages arising out of or resulting from a breach of contract, including, but not limited to, any breach or alleged breach of any of Your foregoing representations, warranties, and obligations. Until any claim for indemnity hereunder has been fully satisfied, We may retain all payments due You.
- REMEDIES; LIMITATION OF LIABILITY
You will provide Us all information and materials necessary to complete Services in a legal and/or lawful manner, and We have no legal responsibility for the accuracy or legitimacy of said information or material. For any reason an officer of the law or any court with proper jurisdiction finds the Author acted unlawfully or without proper authorization obtained information resulting in unlawful or inaccurate work being completed, We hold no responsibility legally or financially.
You acknowledge and agree that although We notify Our network to cease publishing Your Work after Termination, some previews may remain up in perpetuity, even beyond Termination. We will not be liable to You for copyright infringement, or in any other way, for the failure of a Contractor to remove an excerpt or preview of Your Work.
We are not liable for any damages related to a Contractor’s failure to remove an excerpt or preview of the Work or update the version of the Work subject to this Agreement during its Term, provided that We have given notice of the requested change to such Contractor. We will not be liable to You for copyright infringement, or in any other way, for the failure of a retailer or Contractor to cease the production, sale and distribution of the Work to remove an excerpt or preview of the Work after this Agreement is terminated, provided that We have given notice of the requested change to such Contractor.
In the event that We publish the Work in any format other than the format selected and purchased by You. The Parties acknowledge and agree that any harm to You caused by the publication of the Work in a non—selected format or a sale of the Work after this Agreement is terminated would be impossible or very difficult to accurately estimate at the time of making of this Agreement and at the time of such event occurs, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise. Our payment of the Liquidated Damages is Our sole liability and entire obligation, as well as Your exclusive remedy if such a sale or publication occurs.
LIMITATION OF LIABILITY. IN NO EVENT WILL WE OR ANY OF OUR EMPLOYEES, REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, OWNERS, AGENTS, ATTORNEYS OR CONTRACTORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF COPYRIGHT INFRINGEMENT, BREACH OF CONTRACT, TORT (INCLUDING LIBEL AND NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL OUR OR OUR CONTRACTORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO COPYRIGHT INFRINGEMENT, BREACH OF CONTRACT, TORT (INCLUDING LIBEL AND NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID TO US BY YOU FOR THE APPLICABLE SERVICES.
he exclusions and limitations in this Section will not apply to damages or other liabilities arising out of Our or Our Contractors’ gross negligence.. We are not responsible for any acts of Our employees outside the course and scope of employment.
- DISPUTE RESOLUTION; GOVERNING LAW
You must file Notice of Intent to Commence Arbitration or file a lawsuit for any claim relating to or arising directly or indirectly from this Agreement no later than one hundred eighty (180) days after any portion of Your claim has accrued. You hereby waive the right to file an Action for any loss, damage or liability related to or arising directly or indirectly from this Agreement under any state or federal statute of limitations that may be longer.
This Agreement, and any legal suit, arbitration, Action, or proceeding arising out of or related to this Agreement, the Services, the Work, Your Manuscript, and, generally, any act or omission involving You and Us and/or Our Contractors will all be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of Your residence or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California with respect to matters of state law or to any rule of construction that allows or directs that ambiguities be construed against the drafter of a contract. Any action arising out of this Agreement shall be brought in the state or federal courts of the Los Angeles, California.
MANDATORY ARBITRATION / CLASS ACTION WAIVER. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ADVERTISING OF OUR SERVICES, YOUR INDUCEMENT TO ENTER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS OF OR RELATING TO DECEPTIVE OR UNFAIR TRADE PRACTICES, MISREPRESENTATION, OR FALSE ADVERTISING, ITS TERMINATION, OR THE VALIDITY OR BREACH THEREOF, WILL BE SETTLED BY ARBITRATION IN LOS ANGELES, CALIFORNIA, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), UNDER AAA’S COMMERCIAL ARBITRATION RULES, BY A SINGLE ARBITRATOR. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATOR WILL HAVE THE POWER TO RULE ON ANY CHALLENGE TO ITS OWN JURISDICTION OR TO THE VALIDITY OR ENFORCEABILITY OF ANY PORTION OF THE AGREEMENT TO ARBITRATE.ARBITRATION REPLACES THE RIGHT TO GO TO COURT. YOU AGREE THAT YOU ARE VOLUNTARILY AND KNOWINGLY WAIVING ANY RIGHT THAT YOU MAY HAVE TO GO TO COURT OR TO HAVE A JURY TRIAL. NEITHER YOU NOR WE MAY SERVE AS A REPRESENTATIVE, A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER, INCLUDING OUR CONTRACTORS, ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, MASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, CONSOLIDATED, MASS OR REPRESENTATIVE PROCEEDING. This provision shall not prevent either party from seeking injunctive relief in Small Claims or Superior Court in Los Angeles, California.
We will not object to Your choice to participate in arbitration by telephone or upon written submission, if You prefer not to participate in person. If You can demonstrate to Us that the cost of arbitration imposes a genuine financial hardship on You to such a degree that Your ability to bring a claim in Arbitration is impacted, We may elect to reimburse You for all or some of the following: (a) that portion of Your initial filing fee for Arbitration that is greater than the initial filing fee for a civil action in San Diego Superior Court San Diego County, California ; Your reasonable expenses to travel to the Arbitration if arbitration by telephone or written submission is not available; or (c) a portion of the cost of the arbitrator. You have the right to opt out of this Mandatory Arbitration provision, which would enable You to litigate disputes in a court before a judge, if You deliver to Us, within thirty (30) days of the Effective Date of this Agreement, an explicit instruction to opt out, hand signed and dated by You, via certified mail, return receipt requested, addressed to Dream Books Distribution LLC 1041 N. Rampart Blvd Los Angeles, California, 900026. If We do not receive Your written notice within this time period, Your right to opt out will terminate and the provisions of this section will apply. If You exercise the opt-out option, each Party consents that it will commence any Action of any kind whatsoever arising from or related to this Agreement, the Terms and Conditions, the Service Order, the Services, the Work, or the Manuscript against the other Party or Our Affiliates, only in the Small Claims or Superior Courts sitting in Los Angeles, California and any appellate court therefrom. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT, RATHER THAN IN ARBITRATION, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. YOU OR WE MAY BRING SUIT IN COURT ON AN INDIVIDUAL BASIS ONLY, AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO APPLY FOR INJUNCTIVE REMEDIES.
We agree that We will not be entitled to Our attorney’s fees or expenses incurred to defend a claim, unless: (a) You opt out, and You initiate a claim against Us or any of Our Affiliates in any court other than Small Claims Court or Superior Court in Los Angeles, California, and We choose to remove the claim to the proper venue; (B) You do not opt out, and You initiate a claim against Us or any of Our Affiliates in any court or in an arbitration venue other than as agreed in this Agreement, and We choose to remove the claim to the proper venue; or (c) Your claim is found to be frivolous by an arbitrator or judge.
- MISCELLANEOUS PROVISIONS
This Agreement shall be binding upon the Parties hereto and each of their respective heirs, executors, successors and permitted assigns. You may not assign any of Your rights or delegate any of Your obligations under this Agreement without the prior written consent of Dream Books Distribution. Any purported assignment or delegation in violation of this Section is null and void. No permitted assignment or delegation relieves You of any of Your obligations under this Agreement. In the event of your death, your executor, estate, beneficiaries or heirs are not entitled to enforce the contract or pursue a refund unless agreed upon by Us or unless there has been explicit proven breach of contract on the part of the provider or Us. We may assign Our rights or delegate any of Our obligations under this Agreement to any of Our Affiliates, Our employees, or Our Contractors, in Our sole discretion, or to any person or entity acquiring all or substantially all of Our business and assets. No waiver by Dream Books Distribution of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by an authorized representative of Dream Books Distribution. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any term or provision of this Agreement is found to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto will negotiate in good faith to modify this Agreement, so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner, in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. We will not be liable or responsible to You, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from any reasonably unforeseeable act or circumstance beyond Our reasonable control, including, but not limited to, any acts of God, war, terrorism, labor conditions, fire, flood, storms, third party acts or governmental action , or restraints or delays affecting Our Contractors’ ability to enable us to timely fulfill services.
The Agreement set forth the entire agreement of the Parties, and replaces and supersedes any previous agreement or contemporaneous understandings, agreements, discussions, or representations, between the Parties on the subject, whether oral or written, express or implied. No amendment of, addition to, or modification of this Agreement shall be effective unless reduced to writing and signed by the Parties hereto.
- SECURITY AND PROTOCOL
For payment security of the Author, he/she must only transact with an authorized Dream Books Distribution Billing or a Finance Department Staff. The Author must remember that other specialists or departments are not allowed to process any payment for any Service. All payments made directly to anyone except the authorized staff are considered null & void and We will not be accountable.
For communication security, the Author must only communicate with a Dream Books Distribution staff.
For concerns related to the production process, You must only communicate with Your Fulfillment Officer or Senior Account Manager.