eBook Distribution Terms and Conditions

Updated March 2014
 

Lulu eBook Distribution Agreement

 

This Lulu eBook Distribution Agreement (“Agreement”) contains the terms and conditions that govern your access to and use of Lulu eBook Distribution (as defined below) and is an agreement between Lulu Press, Inc. (“Lulu,” “we,” “us,” or “our”) and you (“you”). This Agreement supplements the Lulu Membership Agreement and Terms of Use (“Lulu Terms”). This Agreement takes effect when you click an “Accept,” “OK,” or “Continue” button or check box presented with these terms or, if earlier, when you use any feature of Lulu eBook Distribution (“Effective Date”).

 

1.    Lulu eBook Distribution

Lulu will:

  1. Provide the files and metadata of your Content and any revision to the retail channels you choose with which Lulu has a direct or indirect relationship (“Distributors”), at its sole discretion; Content must meet the requirements of this Agreement, the Lulu Terms and the Distributors.
  2. Notify you if Distributors inform us that your content was rejected.
  3. Notify the Distributors if you retire your Content to withdraw that Content from availability.
  4. Provide summary reporting of any sales of your Content.

Lulu will not:

 

  1. Proofread or review your Content; the sole responsibility for your Content, the files and associated metadata rests with you.
  2. Be responsible for or control the way your Content renders, in print or electronic format, regardless of the device used.
  3. Be responsible for or control any purchase orders placed directly through Distributors.
  4. Be responsible for or control any third party resellers of your Content.
  5. Maintain a backup copy of your Content.
  6.  Guarantee that your Content will be sold.

The Distributors:

  1.  Are not parties to this Agreement and are under no obligation to accept your Content.
  2.  Are not under the control of Lulu.
  3. May take up to 8 weeks to permit your Content to be available to the public.
  4. Are not responsible for the way your Content renders, in print or electronic format, regardless of the device used.
  5. May take up to 8 weeks to withdraw your Content from availability, and some may refuse to remove your Content’s listing metadata from their servers.
  6. May not maintain a backup copy of your Content.
  7. Do not guarantee that your Content will be sold.
  8. May set a discount on your Content’s Sales List Price.
  9. May operate on a subscription basis, under which a user may access up to twenty percent of your Content before a sale is recorded.

 

2.    Your Responsibilities.

  1. You are solely responsible for your Content, the associated files and metadata.
  2. You agree that for any Distributor that you choose for your Content under this Agreement, Lulu becomes the exclusive means by which you provide that Content to the Distributor.
  3. You are solely responsible to provide accurate information about your domicile and about where your Content may already be published.
  4. You are solely responsible for the compliance of your Content with the Lulu Terms, Content Policy and Guidelines, any and all laws, and claims relating to your Content.
  5. You are solely responsible for properly handling and responding to notices sent to you regarding any person claiming your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act (“DMCA”).
  6. You are responsible for maintaining appropriate backup of your Content.
  7. You will ensure that your Content and any revisions meet the Lulu distribution requirements in existence at any time.
  8. You acknowledge that there is no guarantee that your Content will be sold.
  9. You acknowledge that once you approve your Content for distribution, it may take up to 8 weeks for the Content to enter the distribution channels and be made available to the public.
  10. You cannot change the title, subtitle or author name once the Content or revision is approved for distribution; you must initiate the entire creation process again to change any of these items.
  11. You may retire your eBook from distribution or remove it from a particular Distributor at any time, but it may take up to 8 weeks for the removal of your Content from distribution to occur and total removal of your Content may not be possible.

 

 

3.    Your Use of Lulu eBook Distribution. You will adhere to this Agreement, the Lulu Terms, and all applicable laws, rules, and regulations when using Lulu eBook Distribution.

4.    Changes to Lulu eBook Distribution.  We may change, discontinue, or deprecate any aspect of Lulu eBook Distribution including which Distributors will be available, or change or remove features or functionality of Lulu eBook Distribution from time to time.  We will notify you of any material change to or discontinuation of Lulu eBook Distribution.

 5.    Suspension.  We may suspend your right to access or use any portion or all of Lulu eBook Distribution immediately without notice to you if we determine:

  • Your use of Lulu eBook Distribution (i) poses a security risk to Lulu eBook Distribution or any third party, (ii) may adversely impact Lulu, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent.
  • You are in breach of this Agreement or the Lulu Terms.

 

6.    Term.  The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.

 

7.    Termination.

a.    Termination for Convenience. You may terminate this Agreement for any reason by (i) providing us 30 days advance notice and (ii) closing your account. We may terminate this Agreement for any reason at any time without notice.

b.    Effect of Termination.  Upon any termination of this Agreement, all your rights under this Agreement immediately terminate.

 

8.    Proprietary Rights.

  1. Your Content. You own all right, title, and interest in and to your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you to your Content, including any related intellectual property rights.  You consent to our use of your Content to provide Lulu eBook Distribution to you.  We may disclose your Content to a governmental or regulatory body (pursuant to subpoenas or court orders).
  2.  Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to your Content; (b) you have all rights in your Content necessary to grant the rights contemplated by this Agreement; and (c) none of your Content will violate the Lulu Terms or any applicable laws, rules or regulations.
  3.  License.

     i.     As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to Lulu eBook Distribution. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: access and use Lulu eBook Distribution solely in accordance with this Agreement and the Lulu Terms. You obtain no rights under this Agreement from us or our licensors to Lulu eBook Distribution, including any related intellectual property rights.

    ii.     You grant Lulu and the Distributors a limited, non-exclusive, non-transferable and worldwide right and license to use the Content, including cover and marketing images, including without limitation the right and license to display, distribute, reproduce, market, sublicense and store the Content.  You also grant us a limited, non-exclusive and worldwide right and license to allow Lulu and the Distributors to use your name(s) and logo(s) and/or the imprint of your Content.

  4. Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction or compensation. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.

              

9.    Indemnification

a.    You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) breach of this Agreement or violation of applicable law by you; (b) any claim involving alleged infringement or misappropriation of third-party rights by your Content or by the use, development, design, production, advertising or marketing of your Content; (c) a dispute between you and a third party, and (d) any sales, VAT, use, income or other tax related to the sale of your Content. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

b.    We will promptly notify you of any claim subject to Section 9, but our failure to promptly notify you will only affect your obligations under Section 9 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.

 

10.Disclaimers

THESE SERVICES ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND DISTRIBUTORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THESE SERVICES, INCLUDING ANY WARRANTY THAT THESE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND DISTRIBUTORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.

11.Limitations of Liability

WE AND OUR AFFILIATES OR DISTRIBUTORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR DISTRIBUTORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THESE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THESE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THESE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THESE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THESE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM

 

12.Modifications to the Agreement

We may modify this Agreement and the Lulu Terms (including any Policies or Guidelines) at any time by posting a revised version on the Lulu Site or by otherwise notifying you by email. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use Lulu eBook Distribution after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Lulu Site regularly for modifications to this Agreement.

 

13.Miscellaneous.

a.    Publicity. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we or our Distributors support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us, our Distributors and you or any other person or entity except as expressly permitted by this Agreement.
 
b.    Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
 
c.     Independent Contractors. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
 
d.    No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
 
e.    Notice.

                    i.       To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Lulu Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Lulu Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

                  ii.       To Us. To give us notice under this Agreement, you must contact Lulu by personal delivery, overnight courier or registered or certified mail to Lulu Press, Inc., 627 Davis Drive, Suite 300, Morrisville, NC 27560. We may update the address for notices to us by posting a notice on the Lulu Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.

 

f.      Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
 
g.    Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
 
h.    No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
 
i.      Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
 
j.      Interpretation.  If a clause in this Agreement and the Lulu Terms conflict, this Agreement will control as to that clause, but both documents shall be liberally construed to adhere to the intent of the parties.  The interpretation of this Agreement shall not be ruled against the drafter, but by the plain language of this Agreement.
 
k.     Governing Law; Venue. This Agreement is governed by the laws of the State of North Carolina, without regard to its "choice of law" or “conflict of laws” provisions that would apply the laws of another jurisdiction. You agree that any dispute that cannot be settled by good faith negotiation shall be submitted to arbitration in accordance with the rules of the American Arbitration Association. The location of the arbitration shall be Raleigh, North Carolina.  The decision of the arbitrator(s) shall be legally binding, shall not be subject to appeal, and shall be enforceable in any court of competent jurisdiction.  You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. 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.
 
l.      Survivability.  The Terms in Sections 2, 8, 9, 10 and 11 relating to your responsibilities, disclaimers, limitations of liability, indemnification and intellectual property shall survive termination of this Agreement.
 
m.    Entire Agreement; English Language. This Agreement includes the Lulu Terms and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement.  If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

 

 

 

Updated October 20, 2016

 

 

 

 

 

 

 

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