Electronic Distribution Agreement
DIGITAL PUBLICATION DISTRIBUTION AGREEMENT
This Digital Publication Distribution Agreement (the "Agreement") is made as part of an online application (the “Application”) for participation in a digital self-publication and distribution program (“Program”) from Curious Realms, Inc. (“Curious Realms” and, together with Curious Realms’ affiliates, “we or “us”). This Agreement is a binding agreement between Curious Realms and the individual or entity identified as the Publisher in the Application (“you” or “Publisher”). The Agreement contains the complete terms and conditions that apply to your participation in the Program. As used in this Agreement, Curious Realms “affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with Curious Realms. If the Publisher is an entity, "Authorized Representative" means the individual person identified as Authorized Representative in the Application who is accepting this Agreement on behalf of Publisher and, by accepting the Agreement in accordance with the instructions on our website, Authorized Representative hereby represents and warrants that:
• Authorized Representative is entitled to enter this Agreement as an authorized representative of Publisher and to bind Publisher to the terms of this Agreement.
• The information provided for Publisher in the Application is accurate, and states, without limitation, the real name, address and e-mail address of Publisher and Authorized Representative.
1. Amendment. We reserve the right to change the terms of this Agreement on thirty (30) days’ advance notice. We will notify you of changes to this Agreement by sending you an e-mail to the e-mail address registered for you in the Application or User Registration. If you do not agree to the changes, you will be entitled to terminate the Agreement effective on thirty (30) days’ advance notice by providing us written notice (in the manner provided in Section 15) of termination due to the changes within seven (7) days of our notice to you. IF YOU DO NOT GIVE US NOTICE OF TERMINATION, YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR NOTICE TO YOU WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES.
2. Titles: Digital Magazines, Articles, Stories, etc. This agreement covers each individual content file (a “Work”) that you submit to us in accordance with our Submission Requirements for the Program. The Program allows customers to read your Titles in the form of digital files that customers can access online, or two download Digital Magazines which may include your Titles for reading offline.
3. Titles, Digital Magazines; Marketing and Promotion. You agree that we may market and promote your Titles by making chapters or portions of your Titles available to prospective customers without charge, and permitting prospective customers to see excerpts of the Title in response to search queries. Curious Realms will not owe you any fees for the marketing and promotional efforts described above. The Program may include features that allow users to print one or more pages of your Titles.
4. Program Terms. We are solely responsible for all promotions and solicitations to be used in connection with the marketing the site, and for processing payments, payment collection, requests for refunds and related customer service, and we will have sole ownership and control of all data obtained from advertisers, customers and prospective customers in connection with the Program. You acknowledge that we have no obligation to display on the site bundle into a Digital Magazine, market, distribute, or offer for sale any Title or part thereof, or to continue displaying on the site marketing, distributing or selling a Title or Digital Magazine after we have commenced doing so.
CuriousRealms.com operates as a not-for-profit enterprise, whose primary source of revenue stems from advertising, and the sale of Digital Magazines. Every 90 Days, Curious Realms will publish a Profit & Loss Statement (“P&L”). Should a profit made by Curious Realms during the period, P&L the profits indicated on the P&L will become the pool of monies that will be distributed to our writers (“The Pool”).
Every 90 days Curious Realms will publish the ratings of its writers. Ratings will be calculated as such:
• Only Titles governed by this agreement are tracked.
• Total Revenue (“TR”) is the total claimed revenue for the period.
• The Percentage of the Total Review derived from sales of Titles, Digital Magazines will be calculated as Direct Sales Revenue Percentage (“DSRP”)
• The Writer’s Word Count (“WWC”), will be the sum of all of the words of each of the writer’s titles sold during the period, ro bundled into Digital Magazines sold during the period.
• The Total Word Count (“TWC”), will be the sum of all WWC’s for each writer whose titles sold, or were sold bundled in a digital magazine during the period.
• The Writers Word Count Rating (“WWR”) is calculated by determine the percentage of the Writers Word Count of the Total Word Count. (WWR = WWC/TWC)
• Non Sales Revenue Percentage (“NSRP”) will be percentage of total revenue represented by all other revenues from all other sources other than the direct sale of Titles or Digital Magazines.
• Every page of every Title is tracked for Page Views. A Page View is when a unique user opens a page for the first time in their browser.
• Total Page Views (“TPV”), are the total of all Page Views by all users during the period.
• Writer Total (“WT”), are the total of all Page Views by all users of all given writer’s Titles during the period.
• The Writer Page Rating (“WPR”) is calculated by determining the percentage of the Writer Total, of the Total Page Views (WPR = WT / TPV).
• The Writers Rating (“WR”, “Your Rating”) is the sum of their WPR and their WWR, weighted by the values of NSRP and DSRP respectively ((NSRP * WPR) + (DSRP * WWR))
Example: Sales of the online Magazine and titles is 1000, revenue gained from advertising and other sources is 2000. Titles you published are responsible for half the total word count in the magazine, and you’ve received 25% of the page views.
TR = 3000
DSRP = 33%
NSRP = 66%
WRP = 25%
WWC = 50%
((66% * 25%) + (33% * 50%)) = 33%
5. Royalties. Provided you are not in breach of your obligations under this Agreement, we will pay you, a percentage of The Pool based on Your Rating (a “Royalty”). Since Your Rating is a percentage of the total page views you’ve received, your percentage of the pool will be equal to your rating.
6. Payment Terms. We will pay Royalties approximately thirty (30) days following the end of the calendar month after the P&L is published. We will, concurrently with payment, provide statements providing details of the P&L, the Writer Rating, Total Page Views and corresponding Royalties. All payments will be made in U.S. dollars via Electronic Funds Transfer (“EFT”) payments. You will not be permitted to register for the Program without providing a valid U.S. bank account number to receive EFT payments. We will accrue and withhold payments until the total amount due is at least $10, provided, however, that we may make a payout of all accrued amounts at any time in our discretion. All statements shall be conclusive, final and binding, unless Publisher gives Curious Realms written notice stating the specific basis for objection within six (6) months after the date rendered. You shall not maintain any action or proceeding against us in respect of any such statement unless you commence that action or suit within six (6) months following the date that you provide Curious Realms with the written notice referred to in the immediately preceding sentence. Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by Curious Realms to you for the accounting periods in question, and your sole remedy shall be the recovery of those monies with no interest thereon.
7. Taxes. We are responsible for collecting and remitting any and all taxes incurred during the operation of the site, the generation of revenue. You are responsible for any income or other taxes due and payable resulting from amounts owed to you by us under this Agreement. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. We maintain the right, however, to deduct or withhold any and all applicable taxes from such amounts, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.
8. Rights Granted. You hereby grant to us, throughout the term of this Agreement, a nonexclusive, irrevocable, worldwide right and license to electronically publish & distribute Titles as described herein, such right to include, without limitation, the right to: (a) reproduce and store Titles on one or more computer facilities, and reformat, convert and encode Titles as Digital Magazines; (b) display, market, transmit, distribute, and otherwise digitally make available all or any portion of Digital Magazines through Curious Realms Properties or our Affiliates (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view online, including on Portable Devices; (c) permit customers to “store” Titles & Digital Magazines that they have purchased from us on Curious Realms’ servers (“Virtual Storage”) and to re-download such Digital Books from Virtual Storage from time to time; (d) re-license your title as a part of a Digital Magazine for sale through other online distributors such as Amazon.com; (e) display and distribute (i) your trademarks and logos in the form you provide them to us as part of your Application or within Titles (with such modifications as are necessary to optimize their viewing on Portable Devices), and (ii) other limited portions of Titles, in each case on and through any Curious Realms Properties and solely for the purposes of marketing, soliciting and selling Digital Books; (f) use, reproduce, adapt, modify, and create derivative works of any metadata that you submit as part of your Application for the purpose of improving categorization, recommendations, personalization features and other features of any Curious Realms Properties; and (g) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) Titles as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display). In addition, you agree that Curious Realms may permit its affiliates and independent contractors, and its affiliates’ independent contractors, to exercise the rights that you grant to us in this Agreement. “Curious Realms Properties” means the website with the primary home page identified by the URL http://www.Curiousrealms.com/ , together with any successor or replacement thereto (the “Curious Realms Site”), and any other web site or online point of presence, on any platform, that is owned or operated by or under license by Curious Realms or co-branded with Curious Realms, and any web site or online point of presence through which any Curious Realms Properties or products available for sale thereon are syndicated, offered, merchandised, advertised or described. “Portable Device” means any portable device that is capable of supporting the electronic purchase, display and/or management of digital text, graphics, audio, or video and/or other content.
9. Term and Termination. This Agreement will remain in effect unless and until terminated by either party in accordance with this Section. Curious Realms shall have the right, in its sole discretion, to terminate this Agreement without cause upon not less than sixty (60) days’ advance notice to you. All rights to Digital Magazines acquired by customers prior to termination shall survive termination, and Curious Realms shall be entitled to retain archival copies of the Licensed Digital Content after termination in order to provide re-downloads to customers who have purchase Digital Magazines prior to termination. The following provisions of this Agreement will survive termination: Section 4, Sections 5-7 (but only to the extent of any payments that are accrued but unpaid at termination), Sections 9-15, and any provisions that define capitalized terms in the foregoing sections.
10. Technology. You acknowledge that we will be entitled to utilize DRM technology in connection with the distribution of Digital Magazines or Titles but are not obligated to do so. Accordingly, there may be no technology or other limitation imposed by us on copying or transfer of any Digital Magazine or Title we distribute.
11. Ownership and Control of Curious Realms Properties. Subject to the authorizations granted to us hereunder, as between us and you, you retain all ownership rights in and to the copyrights and all other rights and interest in and to the Titles. We retain all ownership rights in and to the copyrights and all other rights and interests in and to the Program and the Curious Realms Properties. We are solely responsible for, and shall have full discretion with respect to the design and operation of the Program and the Curious Realms Properties and the marketing therefor, provided that Curious Realms’ use of the Titles pursuant to the rights granted herein shall be subject to the terms of this Agreement. In the event that you elect to provide suggestions, ideas, or other feedback to Curious Realms or any of its affiliates in connection with the Curious Realms Properties or the Program (“Feedback”), Curious Realms and its affiliates shall be free to use and exploit the same in any manner without restriction and without any need to compensate you therefor.
12. Clearances. With respect to all Titles, you shall obtain and pay for any and all necessary clearances and licenses for the Titles to permit our exercise of the rights granted hereunder without any further payment obligation by us, including, without limitation, all royalties and other income due to any copyright owner.
13. Representations, Warranties and Indemnities. Publisher represents and warrants that: (i) it is a corporation or other entity or a sole proprietorship or person domiciled in the United States and that the information provided for Publisher in the Application is accurate; (ii) it has the full right, power and authority to enter into and fully perform this Agreement and shall comply with the terms of this Agreement; (iii) prior to Publisher’s or its designee’s delivery of any content, it shall have obtained all rights that are necessary for Curious Realms or its affiliates to exercise the rights granted hereunder; (iv) neither the exercise of the rights authorized hereunder nor any materials embodied in the content nor its sale or distribution as authorized herein will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction; (v) it will ensure that all Titles delivered to Curious Realms hereunder comply with the technical delivery specifications provided by us; and (vi) it is and shall be solely responsible for accounting and paying any co-owners or co-administrators of any Title or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable hereunder. Publisher shall indemnify, defend and hold Curious Realms, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of Publisher’s representations or warranties set forth herein. We shall be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.
14. Limitation of Liability. EXCEPT WITH RESPECT TO OUR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 15.1, WE WILL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN NO EVENT SHALL OUR LIABILITY HEREUNDER EXCEED THE AMOUNT OF FEES DUE AND PAYABLE BY CURIOUS REALMS UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PUBLISHER ACKNOWLEDGES AND AGREES THAT CURIOUS REALMS CANNOT ENSURE THAT TITLES SUBMITTED BY OR ON BEHALF OF PUBLISHER WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT SUBSCRIBERS WILL COMPLY WITH ANY CONTENT USAGE RULES CURIOUS REALMS MAY MAKE APPLICABLE IN CONNECTION WITH USE OF DIGITAL BOOKS, AND CURIOUS REALMS WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY SUCH CONTENT USAGE RULES.
15. Miscellaneous. This Agreement may not be amended, except in writing signed by both parties or as provided in Section 1 above. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. The parties to this Agreement are independent contractors. Each party shall bear its own costs and expenses in performing this Agreement. Curious Realms will send all notices and other communications to you at the e-mail address or the mailing address that you provide in connection with your Application. You must send all notices and other communication relating to this Agreement to Curious Realms at Legal@curiousrealms.com. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other, except that (i) Curious Realms may assign any of its rights and obligations under this Agreement without consent and (ii) you may assign all of you rights and obligations under this Agreement to any corporation or other entity domiciled in the United States without consent in connection with the sale of all or substantially all of the assets of a Title; provided that you shall give Curious Realms written notice of any such assignment no later than ten (10) business days following such assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS OR THE U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. CONTENT PROVIDER HEREBY IRREVOCABLY CONSENTS AND WAIVES ANY OBJECTION TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED AT DALLAS COUNTY, TEXAS WITH RESPECT TO ANY CLAIMS, SUITS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, supersedes any and all prior or contemporaneous agreements between the parties with respect to the subject matter hereof and does not confer upon any other person other than the parties any rights or remedies hereunder.
