Services & Distribution Agreement

This Services and Distribution Agreement includes and incorporates by reference those additional terms and conditions included in Service Orders, receipts, and communications from Us, as well as Our Privacy Policy, Legal Notice, Content Guidelines, submission and approval forms, and the terms of use governing the use of Our websites  (collectively referred to as the "Agreement"). As used in this Agreement, "We," "Our" and "Us" refers to Ostrich Publishers (a North Carolina company), and its employees, agents, representatives, partners, parent and related entities and imprints, licensees, successors and assigns; "Contractors" refers to third-party publishers, agencies, vendors, retailers, distribution channels, and suppliers with which We contract; and "You" and "Your" refers to the person or entity accepting this Agreement by signing

By accepting  this Agreement, Initiated once you "sign up" (Submit an online application and your manuscript) You engage Us to provide certain creative, publishing, and editorial services ("Publishing Services"), marketing, and promotional services ("Marketing Services"), as well as book sale and distribution services ("Distribution") [collectively referred to as the "Services"], with the objective of publishing, selling and/or distributing a book, in print, digital, video, and/or audio format (the “Work”). The specific Services purchased by You may be purchased individually or bundled into a "Purchasing Package," and will be set forth in one or more separate "Service Orders." This Agreement applies to and governs all Services provided by Us while this Agreement is in effect, as well as any acts incidental to the fulfillment of the Services or other responsibilities under this Agreement or applicable law.
 

1. RIGHTS AND LICENSES
The Work is made up of intellectual property that may fall into four categories: (1) Your Manuscript; (2) Our Work Product; (3) Our Property; and (4) Third Party Property.

Your Manuscript 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 MANUSCRIPT.

Our Work Product includes the book design, book cover design, graphics, Illustrations (as defined below), 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, barcodes, and ISBN's. We remain the sole and exclusive owner of all right, title and interest, including copyright, in and to Our Work Product and Our 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 Your 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 Manuscript 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, print, publish, 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, royalty-free, 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")

2. FULFILLMENT OF SERVICES
Before We are required to begin fulfillment of the Services, You must submit to Us: (a) a fully completed Title Submission Form or other forms requested by Us; (b) Your Manuscript; and (c) full payment for the Services. We are not responsible for the loss of or damage to Your Manuscript while in transit or while in Our possession. 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 (set forth on our website and available upon request) and all applicable laws and regulations. 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. You may not rely on the Content Evaluation, or any results We may share with You for any purpose whatsoever. If We have reason to believe that Your Manuscript or The Work does not comply with Our Content Guidelines, in Our sole discretion, We may require that You revise the Manuscript or Work in order to bring it into compliance, and We may remove The Work from distribution until such revisions are made. 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 ("Suggested Retail Price"). PLEASE NOTE THAT THE SUGGESTED RETAIL PRICE IS NOT NECESSARILY THE PRICE OF THE WORK TO THE END CUSTOMER, WHICH IS SET BY THE RETAILER.

When We have created The Work, We will provide You with an electronic copy for Your complete and thorough review prior to publication. 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 Suggested Retail Price, 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 or pricing issues 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. The Work may be sold individually in any format, or may be distributed in one or more of the following models: (i) divided with only certain portions of the Work sold; (ii) combined, in whole or part, with other works and sold as part of a bundle; (iii) combined, in whole or in part, with other works and sold as part of a subscription service; or (iv) combined, in whole or in part, and sold as part of a lending service. We do not warrant that any particular Contractor will offer the Work for sale, as this is up to the sole discretion of the Contractor, or that We will continue to use any particular Contractor. 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.

You are responsible for the payment of shipping and handling fees applicable to the shipment of copies of the Work to You, whether included with the Service(s) or Publishing Package, provided free-of-charge, or otherwise purchased by You from Us.

3. ROYALTIES

Royalties will be paid to You on all sales of the Work, EXCEPT: (a) sales of used copies of the Work; (b) sales of the Work to Yourself; and (c) copies of the Work given to any person or entity free of charge. You will receive the following Royalties:

  • Seventy percent ( 70%) of the Suggested Retail Price for each sale of the individual Work in Ebook or digital format via Amazon, Goodreads or any other third-party online book store.

  • Seventy percent (70%) of the Suggested Retail Price for each sale of the individual Work in print format through one of our Contractors;

  • Seventy percent (70%) of the Suggested Retail Price for each sale of the individual Work in print format through Our online bookstore, if such bookstore option is available;

  • Seventy percent (70%) of proceeds from any royalty-generating activity of which your work is part, this includes royalties gained as a result of listing on Amazon Kindle, Kobo subscriptions, etc.

Total sales of the Work and Royalties are calculated on a calendar quarter basis. Royalties due will be paid within ninety (90) days after the end of each calendar quarter. We may charge you an additional fee per check if You elect to receive payments by check or draft when electronic funds transfer (EFT) is available. We may accrue and withhold payment until the total amount of Royalties earned equals or exceeds seventy-five dollars ($25). All held Royalties will be paid in full within ninety (90) after the end of each calendar year. Royalty payments may be reduced by any outstanding amounts You owe to Us, and are subject to garnishment. We reserve the right to determine or change the method of payment, in our sole discretion.

Royalties may be subject to applicable tax requirements and withholding. You will be solely responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity. In order to determine the appropriate amount of withholding, if any, You will provide Us with all necessary information and documentation requested by Us. If You fail to provide Us with the proper documentation and information, We will withhold those amounts required to be withheld in compliance with the tax code or other governing laws and regulations, and will remit these amount to the appropriate government agency. You have no right to seek reimbursement from Us for such withholdings.

You are responsible for supplying and maintaining with Us complete and current personal information, including, but not limited to, Your name, address, telephone number, email address, bank information, and tax information. We are not liable for any damages related to delays or failure to receive notices, tax documents, Royalty payments or other information resulting from Your failure to maintain accurate current and complete personal information with Us. We reserve the right to place a hold on payment of Royalties if a check is returned because the mailing address You have provided Us is no longer accurate or an electronic payment is rejected because the bank information You have provided Us is no longer valid. We will continue to hold the Royalties until You provide Us with accurate address and bank account information.

4. TERMINATION & REFUNDS
Either Party may terminate this Agreement at any time, with or without cause, with written notice to the other Party. When this Agreement is terminated, We will notify and demand that all of Our Contractors (such as Amazon, Google and Apple) cease the production, sale and distribution of new copies of the Work. However, We cannot control the actions or omissions of Our Contractors, or when they choose to comply with Our request. Even after Contractors stop selling the Work, previews and excerpts may be seen on the internet in perpetuity, long after termination. 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. You will remain liable for payment of the balance due, subject to the Refund provisions below

If You terminate the Agreement, or if We terminate the Agreement for Cause (as defined below) at any time or without Cause after We have fulfilled the Publishing Services and Marketing Services, Refunds will be issued as follows:

  • For Publishing Packages:

        Prior to submission of Your Manuscript:

        0-90 calendar days after the purchase: 100% of purchase price, less $150 or 10% of the purchase price,
        whichever is greater

        After submission of Your Manuscript but prior to final approval, if the refund is not due to failure to comply with Our
       Content Guidelines:

    

      After submission of Your Manuscript but before design work begins: 50% of purchase price


      After design work begins but prior to final approval: 25% of purchase price


     After You have given final approval of the Work:

     No Refund


     NOTE: Submission of Your Manuscript occurs when You first deliver to Us any text or images intended for
      publication.

  • For individual Services (not included as part of a Publishing Package):

         Prior the beginning of fulfillment of individual Service(s):


         0-90 calendar days after the purchase: 100% of purchase price, less $150 or 10% of the purchase price,
        whichever is greater

       More than 90 calendar days after the purchase: No Refund


       After We begin fulfillment of individual Service(s):

      No Refund

      NOTE: Fulfillment of a Service occurs either when You return the author questionnaire, whether or not completed
      fully or correctly, or when We or a Contractor begin work on the Service, whichever occurs first.

If We terminate the Agreement without Cause at any time prior to fulfilling the Publishing Services and Marketing Services, We will Refund 100% of the purchase price. "Cause" means (a) You behave in an abusive or uncivil manner toward Us or Our Contractors; (b) Your Manuscript or Your Work fails to comply with the Content Guidelines or applicable laws, at any time; or (c) We receive a formal or informal allegation, complaint, demand or Action in any form made by a third party relating to You, Your Work or Your Royalties. If at any time, We terminate this Agreement because Your Manuscript or Your Work do not comply with our Content Guidelines, in Our sole discretion, We will refund 100% of the purchase price, less a Content Evaluation processing fee of $25.

If, after termination of this Agreement, You request in writing an electronic file(s) of the Work, We will send the PDF file(s) within 30 days, with Our Property removed.

4. 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 coauthors owning all copyrights to Your Manuscript, or Your Manuscript is a work for hire and 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 Manuscript 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 Manuscript 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; or (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);

  • All statements in Your Manuscript 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 Manuscript 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.

5. DISCLAIMER OF WARRANTIES

SALES ARE NOT GUARANTEED. WE CANNOT CONTROL THE SUBJECTIVE PURCHASING DECISIONS OF CONSUMERS OR BOOKSELLERS. WE CANNOT AND DO NOT GUARANTEE SALES OF THE 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.

 

6. 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, employees, agents, insurers, contractors, 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, including Royalties, if any, and/or We may cease providing any further Services; and You will have no right to receive a Refund of any amounts paid by You to Us.

8. REMEDIES; LIMITATION OF LIABILITY

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. We will continue to pay Royalties for any sales made by Us or Our Contractors after the termination of this Agreement.

 

In the event that We publish the Work in any format other than the format selected and purchased by You, Your sole remedy will be the payment of Royalties on any sale of the Work in the non-selected format; and, upon written notice from You, We will delist and request Our Contractors to delist such version. The Parties intend that the payment of Royalties if a sale of the Work occurs after this Agreement is terminated or if the Work is published in a non-selected format constitutes Liquidated Damages and compensation, but not a penalty. The Parties acknowledge and agree that any harm to You caused by the publication of the Work in an 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, OR OWNERS 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.

 

The exclusions and limitations in this Section will not apply to damages or other liabilities arising out of Our or Our Contractors’ gross negligence or willful or intentional misconduct.

 

 

9. DISPUTE RESOLUTION; GOVERNING LAW

You must file for Arbitration for damages 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 Indiana 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 Indiana 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.

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 MONROE COUNTY, INDIANA, 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.

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. 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 after You sign this Agreement, an explicit instruction to opt out, hand signed and dated by You, via certified mail, return receipt requested, addressed to Attn: Legal, 3623 Latrobe DARIVE 221, Charlotte, NC 28212.

 

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 Services, the Work, or Your Manuscript against the other Party or Our Contractors, only in the Small Claims, Circuit or Superior Courts sitting in Bloomington, Monroe County, Indiana, or the Federal Courts of the Southern District of Indiana, sitting in Indianapolis, Indiana, 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.

10. MISCELLANEOUS PROVISIONS

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior or contemporaneous understandings, agreements, discussions, or representations, whether written or oral. We may modify this Agreement (except Section 1 and the Royalty percentages set forth in Section 3) at any time, with thirty (30) days' notice to You by mail or email. If You do not accept such modification, You may terminate this Agreement in accordance with Section 4 above. The Parties agree that the electronic signatures included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither of the Parties will have authority to contract for or bind the other Party in any manner whatsoever. This Agreement shall inure to the benefit of and 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 Us. Any purported assignment or delegation in violation of this Section is null and void. We may assign Our rights or delegate any of Our obligations under this Agreement to any of 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 of any of the provisions of this Agreement is effective unless explicitly set forth in writing. 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 except with respect to provisions which require action within a stated period of time. 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. Neither party will be liable or 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.

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