Last Updated: September 3rd, 2012
THIS AGREEMENT (“Agreement”) is made and effective as of the date of acceptance, by and between you (“Client”) and Kodelite LLC (“Kodelite”)
WHEREAS, Kodelite owns, distributes and provides the EditionGuard service for conducting eBook sales, distribution or rental business(es) on the Internet (hereinafter referred to as the “Service”).
WHEREAS, Client desires to utilize the Service to develop, enhance or maintain Client's business and/or presence on the Internet with eBook DRM capabilities.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
Kodelite agrees to provide to Client the Services agreed upon between Kodelite and Client as selected by Client in Kodelite's customer database that is specified at www.editionguard.com
PAYMENT AND INVOICING
- In consideration of the performance of the Service, Client shall pay Kodelite monthly in advance the amount set forth in Kodelite's customer database as such records are amended from time to time for the Services during the term of this Agreement.
- Client shall receive a confirmation letter via e-mail at the time Client contracts for the Services, which shall confirm the fees payable to Kodelite. Thereafter, Client shall receive a monthly billing statement for the upcoming month. The monthly billing statement shall indicate any changes in fees, which fees shall become effective upon thirty (30) days' notice as set forth in Section 2.4 herein.
- Client is responsible for all activities and charges resulting from Client's use of the Service. Client agrees to pay all fees and charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by Kodelite in the event that Client's account is terminated by Kodelite or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the Services until Client notifies Kodelite by sending an e-mail with account information to email@example.com.
- In resolution of any disputes regarding the charges resulting from the Client’s use of the Service, the billing and accounting records of Kodelite will be deemed the only worthy evidence.
- Current rates for using the Service may be obtained on our web site at www.editionguard.com. Kodelite reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time. In addition, Kodelite may institute special trial offers, from time to time, that shall be reflected in the confirmation letter sent to Client upon sign up. If Kodelite does not receive the full amount of Client's Service account balance within three (3) days of invoice date, a late charge equal to 1.5% per month or highest amount allowed by law per month will be added to Client's bill and shall be due and payable. Client shall also be responsible for all attorney and collection fees arising from Kodelite's efforts to collect any unpaid balance of Client's account(s), and Kodelite may terminate Client's account immediately without further notice to Client.
- All services renew automatically. Client may opt out of automatic renewals by contacting firstname.lastname@example.org.
- RESPONSIBILITIES AND RIGHTS OF KODELITE
- Means of Performance. Kodelite shall provide Client with the Kodelite hosting services, as described at www.editionguard.com hereto. Kodelite has the right to control and direct the means, manner, and method by which the host services are performed.
- Other Work. Kodelite has the right to perform and license products to others during the term of this Agreement. Kodelite may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. Kodelite reserves the right to block any content hosted by Kodelite that contains any content that Kodelite deems in its sole discretion to be unacceptable or undesirable.
RESPONSIBILITIES AND RIGHTS OF CLIENT
- Client. Client represents and warrants that (i) Client is at least eighteen (18) years of age, (ii) Client possesses the legal right and ability to enter into this Agreement, and (iii) the performance of Client's obligations and use of the Services by Client, its customers and users, will not violate any applicable laws, regulations or the rules and regulations or cause a breach of any agreement with any third parties or unreasonably interfere with other Kodelite Clients' use of Services. Client assumes all risks related to processing of transactions related to electronic commerce. Client agrees to provide Kodelite with accurate, complete and updated information required by the registration of the EditionGuard host service (Client Registration Data), including Client's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify Kodelite within thirty (30) days of any changes in Client's Registration Data.
- Breach of Warranties. In the event of the breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Kodelite will have the right, in its sole discretion, to suspend or terminate immediately any Services.
- Third-Party Software. Third-party software available through the Services may be governed by separate end user licenses. By using the Services and the thirdparty software, Client agrees to be bound by the terms of such end user licenses regarding the applicable third-party software. Client consents and authorizes Kodelite to delegate the authorizations Client provides to Kodelite to its third party service provider(s) as Kodelite deems necessary or desirable to provide the applicable Services. Client agrees that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such third party service providers and such third party service providers are deemed to be third party beneficiaries of the Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. Client also agrees that all reference to “Kodelite” within this Agreement and any incorporated terms are also deemed to include, where applicable, Kodelite's agents, such as the third party service providers.
- Management of Account. Client shall be solely responsible for all content made available through the Service, and shall at all times be subject to the terms of this Agreement, Kodelite's then-standard Terms of Service (“TOS”) and any generally applicable guidelines and service standards published by Kodelite. Client warrants that its content hosted on the EditionGuard service (i) will conform to the Kodelite TOS attached hereto as Exhibit A; (ii) will not infringe and will not contain any content that infringes on or violates any international or domestic copyright, patent or any other third-party right; and (iii) will not contain any content which violates any applicable international or domestic law, rule or regulation. Kodelite shall have no obligations with respect to the content available on or through the Service, including, but not limited to, any duty to review or monitor any such content. Kodelite reserves the right to block any Client that violates any of the above-stated terms, or which in Kodelite's sole discretion, Kodelite deems objectionable or offensive, or otherwise violates a law or Kodelite policy, or, in the alternative, to terminate this Agreement in accordance with Section 7.3 herein.
- Compliance Laws. Client agrees that it will use the Services only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the TOS, as updated by Kodelite from time to time. The TOS are incorporated herein and made a part hereof by this reference. Kodelite may change the TOS, with notice, which notice may be provided by posting such new TOS at the Kodelite Site. Client may request a current copy of the TOS by sending or faxing a request to Kodelite. Client agrees that it has received, read and understands the current version of the TOS.
- Proprietary Rights. Unless otherwise specified, all work performed hereunder by Kodelite, is the property of Kodelite, and all title and interest therein shall vest in Kodelite. To the extent that title to any such works may not, by operation of law, vest in Kodelite all rights, title and interest therein are hereby irrevocably assigned to Kodelite. All such materials shall belong exclusively to Kodelite, and Kodelite shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give Kodelite and any person designated by Kodelite such reasonable assistance, at Kodelite's expense, as is required to perfect the rights defined in this paragraph.
LIMITATION OF LIABILITY, NO OTHER WARRANTY AND DISCLAIMER
- Limitation. In the event that any limited guarantees are provided by Kodelite, such limited guarantees are null and void if Client fails to follow Kodelite's TOS and other policies or otherwise breaches this Agreement in any respect.
- No Other Warranty. Kodelite does not monitor or exercise control over the content of the information transmitted through its facilities. Use of the Service or any information that may be obtained there from is at Client's own risk. The Services are provided on an “as is” basis, and Client's use of the Service is at its own risk. Kodelite does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Kodelite does not represent or warrant that the Services will be uninterrupted, error-free, or completely secure.
- Disclaimer of Actions Caused by and/or Under the Control of Third Parties. Kodelite does not and cannot control the flow of information to or from Kodelite's network and other portions of the Internet. Such flow depends in large part on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties may impair or disrupt Client's connections to the Internet (or portions thereof). Kodelite cannot guarantee that such events will not occur. Accordingly, Kodelite disclaims any and all liability resulting from or related to such events.
- Client agrees to indemnify, defend and hold Kodelite and its affiliates, agents, employees, and licensors (including the third party service providers) harmless from any and all claim, demand, loss, costs or expense, including attorneys' fees, made by any person arising out of Client's violation of this Agreement, International or Domestic Securities laws or regulations, or any other person's rights including but not limited to infringement of any copyright or violation of any proprietary or privacy right.
- Under no circumstances, including but not limited to a negligent act, will Kodelite or its affiliates, agents, employees, or licensors (including third party service providers) be liable for any damages of any kind that result from the use of, or the inability to use, Services, even if any such party has been advised of the possibility of such damages.
- In no event will Kodelite or its third party service providers be liable to Client or any third Party for any tort, contract or any other liability arising in connection with the use of the Services, or reliance on any information or services provided by Kodelite. Kodelite and its third party service providers will under no circumstances be liable to Client and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if Kodelite or its third party service providers has been advised of the possibility of such damages, resulting from: (i) the use of the inability to use the Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user date, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchases or obtained or messages received or transactions entered into, through or from the Services; (iv) statements or conduct of anyone on the Services; (vi) the use, inability to use, unauthorized use, performance or nonperformance of any third party, even if the third party has been advised previously of the possibility of such damages; or (vii) any other matter relating to the Services. Client agrees that Client will not in any way hold Kodelite responsible for any selection or retention of, or the acts or omissions of, third parties (including third party service providers) in connection with the Client Services.
- Because some regions prohibit the limitation of liability for consequential or incidental damages, in such regions the limitation of liability only with respect to consequential or incidental damages may not apply to Client, and the respective liability of Kodelite and its third party service providers, employees, distributors and agents is limited to the greatest extent allowable under applicable law in those regions.
- In the event that a court or arbitration panel, as the case may be, should hold that the limitations of liability or remedies available as set forth in this Agreement, or any portions thereof, are unenforceable for any reason, or that any of Client's remedies under this Agreement fail, then Client expressly agrees that under no circumstances will the total, aggregate liability of Kodelite and its third party service providers, employees, distributors, agents or affiliates, to Client or any party claiming by or through Client for any cause whatsoever exceed $100 (U.S.), regardless of the form of action and whether in contract, statute, tort or otherwise.
- Without Cause. This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than five (5) days' prior email notice of termination. No matter which party terminates the Agreement pursuant to this Section 7.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such five (5) day period.
- For Cause. In addition to any other rights it may have under this Agreement or applicable law, Kodelite may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) a default in payment, or (ii) Client's breach or failure to comply with the TOS or other policies of Kodelite. Client may terminate this Agreement if Kodelite breaches any material term or written notice of same. If this Agreement is terminated by Kodelite under this Section 7.2, all balance of the then current term shall immediately become due and payable. In addition to the foregoing, Kodelite reserves the right to prohibit any conduct or to remove any materials or content in violation of the TOS or which Kodelite believes in its sole discretion to be illegal or potentially harmful to others or may expose Kodelite to harm or liability.
- No Liability for Termination. Neither party will be liable to the other for any termination or expiration of any Services of this Agreement in accordance with its terms.
- Survival. The following provisions will survive any expiration or termination of the Agreement: Section 4, 5, 6, 7, and 8.
- Assignment. Client may not assign this Agreement or any of Client's rights or obligations hereunder without the prior written consent of Kodelite, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns.
- Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile.
- Governing Law. This Agreement, and all future agreements Client may enter into with Kodelite, unless otherwise indicated on such other agreement, will be governed by the laws of the State of Delaware, USA, without regard to conflicts of law principles thereof. This is the case regardless of whether you reside or transact business with Kodelite in the State of Delaware or elsewhere. Unless a dispute would be governed by an applicable arbitration clause, Client agrees to submit to the personal and exclusive jurisdiction of the courts located within the State of Delaware, USA. If any part of the Agreement is unlawful, void or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
- Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.
- Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.
- Severability. In the event any one or more of the provisions of the Agreement or any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.
- Force Majeure. Kodelite and its affiliates, agents, employees, or licensors (including third party service providers) shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure to transport, accident, ware, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.
- Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
- Terms of Services. Client agrees to be bound by Kodelite's TOS for all Services and products used by Client. The current TOS can be found on Kodelite's website at www.editionguard.com. Should Client disagree with any updates to Kodelite's TOS, it is Client's responsibility to notify Kodelite of Client's desire to terminate their Services immediately.
- Implied Agreement. CONTINUED USE OF THE SERVICES AND/OR PRODUCTS CONSTITUTES IMPLIED AGREEMENT WITH THIS AGREEMENT AND KODELITE’S TOS IN THEIR ENTIRETY. BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY ALL TERMS ASSOCIATED WITH SAID SERVICES, INCLUDING THIS AGREMEENT AND THE TOS. CLIENT'S ONLY RECOURSE IN THE EVENT OF A DISAGREEMENT IS TO TERMINATE THIS CONTRACT IMMEDIATELY IN ACCORDANCE WITH SECTION 7 HEREIN.
- Entire Agreement. This Agreement, and the exhibits reference herein, sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which are different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.
- No Party Deemed Drafter. In the event that any provision hereof is construed by a court of law or equity or an arbitrator, no provision herein shall be construed more harshly against either party as drafter.