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TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT (“Agreement”) is a valid and binding Agreement between YOU (“End Users”, “Authors”, “Publishers” and/or any “Agent” thereof) and FIRST EDITION DESIGN PUBLISHING, INC. (hereinafter referred to as “First Edition”, “We” or “Us”).
Your access to and use of the Site are expressly conditioned on your acceptance of and compliance with this Agreement. By using the service available through www.FirstEditionDesignPublishing.com and affiliated domains (the “Site”), you agree to the below terms and conditions governing the applications, features and functionality available on or through the Site (the “Service”). If you do not agree with these terms, do not use the Service.
For purposes of this Agreement, the term “YOU” shall mean any and all End Users, Authors, Publishers, or Agents, whether acting in an individual capacity or on behalf of an entity, or as the authorized representative of any End Users, Authors, Publishers or Agents (hereinafter collectively referred to as “APA” or “You” throughout this Agreement).
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THE GRANT AND THE TERRITORY. APA hereby authorizes, grants and assigns to First Edition the nonexclusive worldwide right to digitally publish, reproduce, format, convert, distribute, display, deliver, advertise, promote, market and sell (“Publish” or “Published”) in any format, and to license others to do so, the work identified on the front page of your submission (the “Work”). Since the terms of this Agreement are non-exclusive, APA is free to Publish, license, market and sell their work elsewhere so long as APA is not violating someone else’s agreement or violating any laws.
PUBLICATION. First Edition, in its sole discretion, may Publish any such deliveries or submissions which do not violate, or which do not appear to violate, the Agreement.
PUBLICATION AT OPTION OF FIRST EDITION. First Edition, in First Edition’s sole and absolute discretion, may decide not to Publish the Work, or may decide to discontinue its publication of Work at any time, and for any reason and for no reason. First Edition will attempt to provide reasonable notice to APA via email and may provide instructions on how to remedy potential issues that might prevent First Edition from listing a title.
PUBLICATION OF WORK “AS IS”. First Edition will Publish APA’s Work as it is delivered, and in an “AS IS, WHERE AS” condition, regardless of whether such delivery occurs electronically or by print/hard copy. First Edition will not edit or modify the Work in any manner after it is delivered, and all Work must be delivered in a condition and format that is ready to Publish. First Edition shall have no obligation to modify any Work after it is submitted. APA shall be solely responsible for any subsequent changes or editorial revisions, which shall result in additional charges. APA shall also pay additional charges if the Work is not submitted in a format that is acceptable to First Edition. First Edition, may, in its sole and absolute discretion, correct any errors existing in a Work as it is delivered, but shall have no obligation to do so.
APA recognizes and acknowledges that modifications to the Work may occur that may be caused by file or design conversions in the process of Publishing. First Edition makes no warranty or guarantee as to the accurate preservation of the original Work’s content or formatting. First Edition reserves the right, in First Edition’s sole and absolute discretion, to format and edit any Work in order to present a professional product. First Edition will review or censure any Work before it is Published to determine if the work falls within proper guidelines.
PROOFING. APA shall be solely responsible for reviewing and inspecting the Work and for proofing any Work that First Edition returns to APA for approval, whether such delivery occurs by electronic copy or by print copy. First Edition shall have no responsibility or obligation to proof any Work at any time. Once APA approves the digital proof—interior and or the cover art for all POD / Print services, APA accepts any and all responsibility for the final spelling and format of the Work and for any errors or omissions in either type or layout found after the printing is complete. First Edition shall not be responsible for any print error costs, loss of business, or any other costs, loss of funds, or fees associated with errors or omissions that were shown by us, but not identified by APA on the final proof sheet.
First Edition highly suggests that the APA first order a test copy when PRINT orders of Author Titles are ordered in quantities no greater than two (2) to assure error-free printing or missed errors by the APA and to limit the loss of APA monies. If an error is found to be at the fault of First Edition only one (1) copy per title will be reimbursed.
HARD RETURNS. First Edition bears absolutely zero responsibility and/or liability for any manuscript that contains hard returns. Hard returns cause broken sentences and broken paragraphs due to improper use of the word processing software. First Edition bears zero responsibility and or liability for any mis-use or not properly typed manuscript due to the client’s lack of knowledge to the workings of any word processing software in reason.
REMOVAL OF POORLY FORMATTED WORKS. First Edition, at its sole and absolute discretion and without advance notice, may remove any Work or title from being added to any distribution point due to formatting from the delivered/submitted content.
HOW TO “UNPUBLISH” WORKS FROM FIRST EDITION. First Edition may Publish the Work until the APA notifies First Edition VIA the BOOK STATUS CHANGE FORM CLICK HERE FOR LINK
First Edition will undertake commercially reasonable efforts to remove the Work from the First Edition distribution list within ten (10) business days. If the APA’s Work has been distributed into major retail channels, the removal of the Work from the retail partners’ digital shelves may take several weeks – and possibly up to six (6) months. First Edition will undertake commercially reasonable efforts to assist APA’s to have their Work removed if APA and publishers still can view their title after ninety (90) days on any retail web site.
APA recognizes and acknowledges that a permanent fingerprint of a removed Work may still exist from time to time on various third party sites that are unaffiliated with First Edition. First Edition cannot control third party listings and there may be a permanent fingerprint on the internet or elsewhere. This risk is a general, well known risk with anything that is posted electronically. First Edition is not responsible for, and has no liability for, any content on third party sites or clearinghouses in varying countries. First Edition is not responsible for, and has no liability for, any delays of First Edition’s licensees in removing the Work from any retail channel.
The ISBN that is assigned to your eBook and or POD Paperback, Hardcopy, etc .shall remain the property of First Edition. Due to third party distribution policies, First Edition REQUIRES that if you republish your outside of First Edition you will need to obtain a new ISBN.
APA’s will receive royalties up to sixty (60) days from the date of removal request. Thereafter, APA shall not be entitled to receive any royalty payment.
REFUND POLICY – NO REFUNDS. All applicable payments to First Edition must be made prior to the commencement of the selected services. All payments made by any APA to First Edition are non-refundable. At no time will any refund be given for orders that are placed and/or received by First Edition. First Edition will immediately commence to Publish the Work upon the acceptance of monies received. Once an order is placed, ALL SALES ARE FINAL, and NO REFUNDS WILL BE GIVEN AT ANY TIME. ALL PUBLISHED WORK IS NON-RETURNABLE. If an APA at any time is not fully satisfied with the Published Work, a representative will be assigned to personally work with the APA to resolve any and all issues that may arise within.
INFRINGEMENT.
Removal of Infringing or Defamatory Work of APA. First Edition takes claims of infringement seriously and may take immediate action upon notice from someone claiming to be an infringed party. Upon receipt of a written notice from a party infringed or defamed by APA’s Work, First Edition will remove the APA’s Work in First Edition’s sole and absolute discretion, and reserves the right to remove any and all information about the APA, the APA’s Work(s) from the Site.
Infringement by Others Upon APA’s Work. If an APA or copyright holder learns that a third party is violating APA’s copyright or pirating or illegally distributing a First Edition Published Work, the APA shall inform First Edition in writing; however, it is the APA’s responsibility to seek relief from the offending parties. If that Work is published by First Edition, First Edition will remove it per section 9.1 above.
Rights Clearances and Other Legal Matters. It is APA’s responsibility to secure any and all permissions to the Work prior to the time APA submits such work if any material from the Work belongs to, or has been licensed to, someone else.
COPYRIGHT. The copyright in the Work shall belong to the APA or the party that APA cites as the copyright holder. APA shall be solely responsible for filing its copyrights and any other intellectual property with the appropriate governmental body if the APA chooses to do so. First Edition will place copyright year and month of Published work within the front-matter of all works. First Edition will conduct a search to assure all copyright dates are accurate. If First Edition cannot find evidence of copyright month and year, First Edition will copyright stamp the month and year of the current publication being Published. First Edition will not accept copyright month and year verbally from the APA. Sufficient evidence must be provided in order to change the month and year stamp that First Edition places within the Published Work. Although APA maintains ownership of the WORDS, APA does not maintain ownership of working and submitted files.
FORMATS OF DIGITAL CONVERSIONS. APA shall submit their Work as a Microsoft Word .doc file, native file or PDF file. First Edition may utilize numerous software technologies to convert the Work into a usable format, as well as manual human interaction abilities to convert the book into multiple eBook formats, and publish the work for use in sampling, distributing, marketing and selling the work. Your submitted file is formatted, converted and reviewed manually and electronically to assure the highest quality. First Edition retains ownership of all internal working documents (this includes print, digital and audio). Our internal working documents are never released to the APA. Exception is only made when conversion services are purchased for the sole purpose of conversion. The documents are released to the APA in the specific formats advertised as “products and or services” under our “Packages” section of First Edition’s web site.
ROYALTIES. So long as the APA is not in breach of any of its obligations under this Agreement, proper copyright protection subsists in the Work, no infringement notices have been filed, and revenues directly attributable to the Work are being collected by First Edition, the APA shall be entitled to a royalty payment as follows:
Royalty Rates. Royalty proceeds payable to the APA will vary based on the sales outlet and the method of the sales. First Edition will undertake commercially reasonable efforts to publish the Work with the suggested price supplied by the APA. Due to currency conversion rates, the suggested price may vary. Retail outlets also have the ability to adjust the suggested price from time to time. The royalty rate is based upon the retail outlet’s advertised rate. This can vary from time to time due to using a third party publisher. First Edition, in its sole and absolute discretion, reserves the right to use a third party for the benefit of the APA. This occasionally happens when a retail distribution point has only assigned a limited number of aggregators to process their catalogs. It is common practice for First Edition to directly Publish the Work through distribution. First Edition does not retain any royalty proceeds from sales of the Work. From time to time First Edition cannot control the distribution venues, as they do retain the right to discount your title.
PROMOTIONAL RIGHTS/MARKETING. First Edition shall have the right to distribute samples of the Work in any form of media or format, including printed media, in order to promote (a) the APA or APA’s Work and/or (b) the Service. These samples will be licensed for free, non-commercial, commercial use, duplication and sharing, and will comply with the sample percentage of 15%- 20%. First Edition is not responsible for marketing your Work once it is published. It is the sole responsibility of the APA to market the Work. First Edition makes no guarantees or promises as to the minimum success of the service or the amount of sales which may result from use of the Service. First Edition shall have zero liability if the Work does not sell to the expectations of the APA.
CRAWLABLE OR OTHER SEARCHABLE RIGHTS. First Edition shall have the right to drive traffic to the APA’s Work on the First Edition through general search engine optimization services and crawlable, promotional hypertext links as well as arrangements with third parties that make searchable certain sample portions of the Work.
PRICING. First Edition allows APA to control pricing and output formats, with the exception of terms where otherwise stated in this Agreement. Pricing cannot fall below $2.99 per title for eBook sales. First Edition does not at any time publish “FREE” books or issue coupons for discounted titles.
STATEMENTS, FEES, ROYALTY PAYMENTS. First Edition charges a varying fee for services provided at time of service. Payment is due at the time order is placed. Special accounts that are invoiced once a week electronically are noted that payment is due upon receipt. First Edition reserves the right to charge a 2% late fee every fifteen days past the first initial fifteen days of receipt. First Edition pays APA royalties on a quarterly basis, approximately thirty (30) days following the close of each calendar quarter. Sales reporting for sales transacted via First Edition retail distribution partners (B&N, Kobo, Amazon, etc) are reported when the retailer reports back to First Edition, sometimes once per quarter or once per month. The time periods can change from time to time and FED reserves the right to not advertise these changes, as these changes are out of our control. The venues can set their own time frame as to when they release reports and monies to FED. FED will process all reports received within 30 days.
Payments and Misc. 1099s are issued electronically (PayPal or Stripe), based on the email you provide us at time of service. If for some reason your payments are sent back to us, we will re-issue one (1) time at no charge. A fee of $5.00 will be charged after the second attempt. If royalties still are not claimed, we will issue a direct deposit at year end, minus a maximum of $25.00 re-issuance fee. If at that time the re-issued funds are not accepted the APA forfeits all past due royalties. FED does not issue 1099s. Your income received is your responsibility to claim on your taxes.
To the extent that you owe any amounts to First Edition as a consequence of this Agreement, First Edition shall have the right to deduct and/or offset all or a portion of any royalty payments otherwise then payable to APA.
In the event that First Edition receives notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with your representations and warranties, or in the event that First Edition has, in its reasonable business judgment, reason to suspect that your account has been subjected to and/or involved in fraudulent activities, First Edition reserves the right to discontinue royalty payments until satisfactory resolution and/or explanation of the suspect activities is obtained.
TAXES. First Edition will use its commercially reasonable efforts to collect sales taxes and other taxes owed on the sale of the Work, and to remit such taxes on your behalf to relevant government authorities. Notwithstanding the above, in all events, APA acknowledges and agrees that the APA is solely responsible for the payment of any sales tax owed in connection with the sale or distribution of the Work.
All royalty payments to the APA will be subject to applicable tax requirements. The United States Internal Revenue Service (IRS) requires First Edition to withhold taxes from net proceeds in cases where proper tax information is not provided. For US residents and US businesses, First Edition requires a SSN or Tax Identification Number, plus a valid US postal mailing address. If US-based APA’s do not provide valid Tax Identification Number, then the IRS requires First Edition to withhold 28% of earnings which First Edition must remit to the IRS within days of transacting the payments to APA. For APAs and publishers outside the US, the automatic withholding rate is 30%. Many countries have tax treaties with the United States that entitle residents and businesses located in these countries to receive either partial or full exemption from the 30% tax withholding. To qualify, APAs and publishers should first check if their country has a tax treaty. If a tax treaty is in effect, then the APA must apply for and obtain an ITIN from the US IRS. Following receipt of the ITIN, the APA must complete the W8-BEN form (or related form, see IRS instructions), sign it, and return it to First Edition Design Publishing. In the event the APA fails to provide the proper documentation and information, or fails to fully comply with the provisions of these Terms and Conditions, First Edition shall have the right to withhold from royalties owed any monies required to be deducted or withheld in compliance applicable tax codes or other governing laws. APA shall have no right to seek reimbursement for such withholdings and payments by First Edition to the proper authorities.
APA’S WARRANTIES. The warranties and representations contained in this Agreement extend to APA and its licensees and successors and assigns. By uploading content to First Edition, the APA represents and warrants to First Edition that the APA:
Is the only APA of the Work and all of its content;
Holds the necessary rights, including all intellectual property rights, in and to the Work and related content’
Is the sole owner of the Work and the rights herein granted;
Has not assigned, pledged, or encumbered such rights or have not entered into any agreement which would conflict with the rights granted to First Edition herein; and agrees not to do any of the aforementioned without first unpublishing the work at First Edition; and
Has full right and power to enter into this Agreement and to grant the rights granted herein.
The Work may be sold, marketed, displayed distributed and promoted as contemplated by this Agreement without violating or infringing the rights of any other person or entity, or any other intellectual or industrial property right, title or interest of any party, and without obligating First Edition to pay any fees to third parties
Will pay or cause to be paid all royalties, fees or other compensation due to third parties in connection with the use of the Work in the manner contemplated into this Agreement.
The APA further represents and warrants that the Work contains no materials which:
Violate any right of privacy which is libelous or violate or infringe any personal right or other right of any kind of any person or entity (this includes publishing a person’s private email address without their permission);
Would violate any of contracts or would disclose any information given to you on the understanding that it would not be published or disclosed.
Plagiarize or pirate any other work or infringe upon any copyright, libel, trademark, privacy or other proprietary right of any third party;
Are injurious to End Users or others including but not limited to recipes, formulae or instructions.
Violate state and federal laws.
Advocate hateful, discriminatory or racist views or actions toward others
Advocate or condones violence against another person, whether or not the other party is a willing participant.
Advocate illegal activities.
Advocate the use of Private Label Rights content to make money on the Internet, or the modification of such content for the creation of Internet content.
Contain images or illustrations depicting individuals perpetrating graphic violence upon another individual or individuals – unless for educational context, not entertainment context.
Contain hyperlinks to affiliate marketing pages, especially if the eBook is published for the sole intent of publishing hyperlinked content that directs readers to affiliate marketing pages.
Advocate or promote “systems” about how to make money on the Internet by publishing eBooks
Contain SEO keyword spam, either in your manuscript or your metadata tags.
Contain advertisements for services, or contain partial books for the purpose of promoting the purchase of the same book elsewhere through First Edition Design Publishing.
Contain graphic images of nudity (either photographic or illustrated) or persons involved in sex acts, and does not include children or underage minors engaged in sexual acts or situations, witnessing such situations, considering sexual acts, or thinking about sexual acts.
The APA further represents and warrants that the Work meets the following standards for originality:
This is not a public domain work;
The Work does not include word-for-word scrapes – or is not a compilation – from Wikipedia or other public domain, government or commercial service;
None of your Work content, either in part or in its entirety, is sourced from “Private Label” rights, articles, Ebooks or information sources which license the same content to other people;
Does not contain or comprise machine-generated language translations (all translated books must be human-translated and edited, not translated by language translation software such as Google Translate);
APA further represents and warrants that the Work is complete and that:
This is not a work-in-progress;
The uploaded file is not a partial sample or sample chapter, or is not a collection of sample chapters
The uploaded Work represents a complete story with a beginning, middle and end.
END USERS. “End-Users” who pay whichever fee is set by the APA to purchase a Work are allowed to use each copy of the Work in any reasonable non-commercial manner in compliance with copyright law and pursuant to this Agreement.
RIGHTS OF USE.
Purchased works: As End User, you acknowledge that all Work furnished by First Edition is licensed for the use of the End Users of the Site and may not be sublicensed or resold. If you purchase a work, you hold a non-exclusive, non-transferable, and non-distributable right of use. In other words, you are free to enjoy it for your own use, but you are not authorized to share, sell, or distribute the work to others.
Free Works and Sample Works: Free works and sample works published at First Edition are the copyrighted material of the APA, and therefore are not authorized for redistribution without prior written consent from First Edition. Third parties are not authorized to download, host and otherwise redistribute First Edition books without prior written agreement from First Edition. Directory services and affiliate marketers may reproduce the metadata information found on each book’s book page (cover image, book description, price, etc.) provided that hyperlinks direct visitors to the First Edition book page, and provided that users are not charged for access to these listings, and are not required to register their personal information to gain access to these listings.
OWNERSHIP. The parties acknowledge and agree that the Site and Service are proprietary to First Edition, and that the Work is proprietary to the APA; that none are proprietary to End User. Subject to the authorizations granted to First Edition hereunder, APA retains all ownership rights in and to the copyrights and all other rights and interest in and to the Work. First Edition retains all ownership rights in and to the Service and the Site, and all related websites, services, applications, tools and content, including but not limited to all internal working documents in connection with Publishing the Work, this includes all finished, complied, formatted, recorded, coded, layout, working and design.
If a book becomes unavailable due to an APA pulling the work from distribution, First Edition reserves the right to remove any website under the control and or ownership of First Edition ie – author web site, any author promotion in regards to a book that contains First Edition’s ISBN., etc. . No refunds will be provided for early termination of website hosting and or domain licensing. APA has the opportunity to transfer domain name only for a nominal fee. All website files are the property of First Edition and cannot be transferred or used by any one other than First Edition. Domain name must be transferred prior to the renewal date. If the renewal date has past, the transfer of a domain name will be $150.00 per domain, plus $15.00 per month for hosting, if the domain is transferred prior to the renewal date the fee is $75.00. All accounts must be up to date. A support ticket must be opened to place this request, and you will be invoiced accordingly.
All cover art paid for by the APA designed and licensed by First Edition is the property of the APA, within limits of x amount of copies sold. When sales exceed x amount of copies sold, a new graphic license will have to be obtained. The average x amount equates to 500,000 copies sold. This can vary from graphic to graphic.
RIGHTS/CLEARANCES. APA shall pay and be solely responsible for any and all necessary clearances and licenses to permit First Edition’s exercise of the rights granted hereunder with respect to the Work, without any further payment obligation by First Edition, including without limitation, all royalties and other income due to any copyright owner.
TERMINATION. Either party may terminate this Agreement at any time without notice or cause. Notwithstanding the foregoing, APA’s representations, warranties and indemnities set forth in this Agreement shall survive any termination of this Agreement, regardless of the reason therefore.
INDEMNIFICATION. APA indemnifies, saves and holds harmless First Edition and its licensees, successors and assigns, along with its distributors, customers, officers, directors, members, employees from any claims, liabilities, actions, demands, losses, damages, judgments, settlements, costs and expenses (including legal costs and reasonable attorneys’ fees(collectively “Claims”) arising out of or connected with any breach of this Agreement or any breach of the representations, warranties, covenants or agreements contained herein. APA will reimburse First Edition, on demand, for any payment made by First Edition at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Each indemnified party will be entitled, at its expense, to participate in the defense and settlement of the Claim with counsel of its own choosing. APA may not enter into any settlement or other disposition of any Claim without the prior written approval of the applicable indemnified parties.
WARRANTY DISCLAIMER. THE SERVICE AND THE SITE AND ANY THIRD-PARTY CONTENT, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDE ON AN “AS-IS, WHEREAS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FIRST EDITION AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED, STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAIN BY APA FROM FIRST EDITION OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. FIRST EDITION AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE SITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY FIRST EDITION, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU, ACCESS, DOWNLOAD OR OTHERWISE OBTAIN INFORMATION, MATERIALS OR DATA THROUGH THE SITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER YOUR AUTHORIZED CONTENT VIAT THE SERVICE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE USE OF SUCH MATERIAL OR DATA.
LIMITATION OF LIABILITY. FIRST EDITION SHALL NOT BE LIABLE TO YOU FOR SPECIAL INCIDENTAL CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE FOR ANY REASON, INCLUDING WITHOUT LIMITATION THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. FIRST EDITION SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY FIRST EDITION OR ANY ROYALTIES THAT ARE DUE FOR ANY USE OR LOSES OF YOUR AUTHORIZED CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH FIRST EDITION OR OTHERWISE. FIRST EDITION’S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID BY YOU TO FIRST EDITION FOR THE DISTRIBUTION OR LICENSING OF YOUR WORK DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST FIRST EDITION.
THE APA AGREES THAT SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN APA AND FIRST EDITION AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APA AND FIRST EDITION. FIRST EDITION’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. APA UNDERSTANDS AND AGREES THAT FIRST EDITION WOULD NOT BE ABLE TO OFFER ITS SERVERS ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT SUCH A LIMITATION OF LIABILITY.
FORCE MAJURE. First Edition will be excused from the performance of any of its obligations if such performance is prevent by events beyond the reasonable control of First Edition, including, without limitation, acts of God, wars, rods, strikes, labor disputes, natural disasters, severe weather, supplier or material difficulties. In such event, First Edition will notify the APA and will provide an estimate of how long performance will be delayed. If performance will be delayed for ore than ninety (90) days, APA may terminate this Agreement as APA’s sole and exclusive remedy.
ARBITRATION. Any claim, dispute, or other matter in question between the parties hereto arising out of or relating to this Agreement shall be exclusively be resolved by final and binding arbitration administered (unless the parties unanimously agree otherwise in writing) by the American Arbitration Association. Notice of the demand for arbitration shall be delivered in writing to all other parties to the arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute, or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based upon such claim, dispute, or other matter in question would be barred by the applicable statute of limitations. Unless the parties otherwise agree, the arbitrator shall be selected in accordance with the rules of the American Arbitration Association. However, the Arbitrator must be a practicing attorney and member of The Florida Bar with at least 15 years experience in business or commercial law.
Any arbitration proceeding shall be held in a location to be determined by the arbitrators in Sarasota County, Florida. Any proceedings to enforce this Agreement to arbitrate or to enforce any award made pursuant to this Agreement shall be brought in Sarasota County, Florida.
The arbitration proceedings shall be governed by the Florida Arbitration Code and the rules pertaining to commercial arbitration of the American Arbitration Association then in effect (except the provisions of this paragraph shall govern if in conflict with such rules).
MISCELLANEOUS.
Entire Agreement. This Agreement is the entire agreement between the parties concerning the subject matter hereof.
Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Florida. If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
No Agency. No agency, partnership, joint venture or other joint relationship is created hereby.
Venue. Venue for all purposes hereunder shall be in Sarasota County, Florida, and the parties hereto hereby consent to such jurisdiction and venue. If any action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
Severability. Each part of this Agreement is intended to be severable. If any term, covenant, condition or provision of this Agreement is unlawful, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the remaining provisions of this Agreement, which shall remain in full force and effect and shall be binding upon the parties
Notices. All notices , requests, demands and other communications pertaining to this Agreement shall be in writing and shall be deemed given when received upon delivery by hand, transmission, by facsimile or mailing by registered or certified fail, return receipt requested, first class postage prepaid to the following address.
If to First Edition: P.O. Box 20217
Sarasota, FL 34276
If to APA: All material sent for First Edition to APA will be sent to the address indicated in the “Author Information” section of the Services Order Form.
Amendment. First Edition may amend this Agreement, including but not limited to any amendments to royalty payment structure and timing, at any time with thirty (30) days electronic or written notice to APA. Such notice may be made to you via electronic mail, facsimile, or postal mail. APA will be deemed to have accepted and agreed to these amendments unless the APA submits a written request to terminate this agreement to First Edition within thirty days at the address for notices specified above, which shall be the sole and exclusive remedy in the event of any disagreement to such an amendment.
No Partnership Intended. The parties hereto are and shall remain independent contractors, and nothing contained herein shall be deemed to create a partnership or joint venture.
Headings. The headings of the paragraphs and sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any of its provisions.
Governing Law. The laws of the State of Florida (without regard to choice of law doctrines) govern all matters arising out of this Agreement.
Assignment. This Agreement shall not be assigned by any party without the express written consent of the others, such consent not to be unreasonably withheld or delayed. No assignment shall relieve a party from complying with that party’s obligations under this Agreement if the assignee does not do so.
Binding Effect. This Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.
Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to its subject matter and supersedes any and all prior agreements, representations and understandings of the parties, written or oral, regarding its subject matter.
Construction. Unless the context requires otherwise, singular nouns and pronouns used herein shall be deemed to include the plural, and pronouns of one gender shall be deemed to include the equivalent pronoun of the other gender. The Agreement is to be construed as if the parties drafted it jointly.
Waiver. No waiver by any party of another party’s breach of any term, covenant or condition contained in this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition of this Agreement.
Jury Trial Waiver. EACH PARTY TO THIS AGREEMENT WAIVES THE RIGHT TO A TRIAL BY JURY OF ANY MATTERS ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY INSTRUMENTS EXECUTED PURSUANT TO THIS AGREEMENT.
Acknowledgement. By using the Service you acknowledge that you have read this Agreement, understand it and will be bound by its terms and conditions. APA consents to the use of electronic means to complete this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and the year upon which the APA first approved such Terms of Service.
Anti-Spam Policy and Enforcement
First Edition Design Publishing does not engage in spam, nor does it share, rent or sell the personal contact information of its members with third parties.
First Edition Design Publishing APAs are prohibited from promoting their works via spam email (sure signs of spam: false “senders” or “reply to addresses, inoperable or nonexistent unsubscribe/remove options, multiple receipts of the same email, superfluous text designed to confuse spam filters, and misleading subject lines). First Edition Design Publishing APAs who are found to be spamming will risk termination of their account and removal of their works. If you believe you have been the recipient of a spam email from a First Edition Design Publishing APA, please forward the entire email message, with full headers on, support (@) FirstEditionDesign.com.
Digital Millennium Copyright Act – http://www.copyright.gov/legislation/dmca.pdf
First Edition Design Publishing, Inc.
PO Box 17646
Sarasota, Florida 34276
Support @ firsteditiondesign.com
941-921-2607 tel
