Blurb Book Distribution Agreement
Blurb, Inc. (“Blurb”) provides software and personal publishing services via its website at http://www.blurb.com (the “Website”) that allow Members of the Blurb Services to create, design, layout, print, and distribute Books. Members of the Website can also sell their Books through the Blurb Bookstore, located at http://www.blurb.com/bookstore (the “Bookstore”) and Blurb’s third-party distributor channels (e.g. Apple, Amazon, LSI) (“Distributor Channels”). The following Blurb Book Distribution Agreement (the “Agreement”) sets forth the legally binding terms pursuant to which You authorize us to sell and distribute the Books that You select (”Your Books”) (a) on the Blurb Website, including in the Bookstore and (b) at Your option, through one or more of the Distributor Channels that You select (collectively, the “Program”).
By signing up for the Program, You agree to be bound by this Agreement. As used in this Agreement, “You” or “Your” refers to the Member of the Blurb Services that has signed up to participate in the Program.
If You participate in the Program, You will continue to be bound by all of the terms and conditions for the Blurb Services set forth at http://www.blurb.com/corporate/tandcs (the “Terms and Conditions”), such Terms and Conditions are hereby incorporated into this Agreement by reference. All initially capitalized terms that are not defined in this Agreement are as defined in the Terms and Conditions, and any disputes arising out of or related to this Agreement will be governed by the Terms and Conditions. If any specific terms of this Agreement conflict with or are inconsistent with the Terms and Conditions, this Agreement will govern and be given precedence.
Blurb reserves the right to add, delete and/or modify any of the terms contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Website. In the event of substantive changes to the terms of this Agreement, You may be notified by email. If any modification is unacceptable to You, Your only recourse is not to participate in the Program. Your continued use of the Program following posting of a change notice or new agreement on the Website will constitute Your binding acceptance of the changes.
1. THE PROGRAM
1.1 Eligibility. Participants must be at least 18 years old to be eligible to participate in the Program.
1.2 Approvals and Consents. You acknowledge and agree that it is Your sole responsibility to acquire all necessary approvals and consents to use all Content included in Your Books and, at Blurb’s request, You must deliver copies of those approvals and consents to Blurb. If You include any information that could be used to identify You, such as Your name, personal phone number, e-mail address, Social Security number, or a government-issued ID number (“Personal Data”) in any of Your Books, it will be included in the Book when sold. By including the Personal Data in a Book, You authorize Blurb to disclose that Personal Data as part of the Book. You may not include Personal Data about other people in Your Books. When electing to distribute Your Book through the Bookstore or a Distributor Channel, You will be required to provide certain metadata information about Your Book. You agree and acknowledge that Blurb and the applicable Distributor Channel(s) have the right to use such information for the purposes of distributing Your Book.
1.3 Costs of Creation. You acknowledge and agree that You are solely responsible for the creation of the Content that You include in Your Books, and will pay all costs associated with its creation and copies thereof, including, without limitation: (i) any compensation owed to third parties; (ii) payments required by any agreement between You and any labor organization (such as unions or guilds); (iii) all development and production costs, including but not limited to studio, tape, editing, mixing, mastering, engineering costs and the like; and (iv) all costs of travel, per diems, facilities and equipment, and the like.
1.4 Royalties. You acknowledge and agree that You are solely responsible for the payment of all royalties or similar payments that are or may become due to any third party, such as all payments or royalties under licenses for third-party material in Your Books. For example, You must pay all mechanical copyright royalties due to the owners of any musical composition used in Your Books and all royalties or payments due to any co-authors or co-owners of copyrights included in Your Content.
1.5 Unions and Guilds. You acknowledge and agree that Blurb is not currently a party to any collective bargaining agreement with any union or guild and that You are solely responsible for complying with any applicable union or guild rules, including without limitation, those relating to payments.
1.6 License. In addition to the licenses granted in the Terms and Conditions, You hereby grant Blurb the following licenses in order to sell and distribute Your Books at Your request:
(a) License to distribute Your Books through the Blurb Bookstore: In the event that You decide to make Your Books publicly available for sale in the Blurb Bookstore, then and only then You thereby grant to Blurb a non-exclusive, worldwide, fully-paid and royalty-free license to reproduce, display, modify and reformat (solely for the purposes of printing and distributing Your Book at your request), and distribute Your Book Content for the purposes of printing, distributing and making Your Books available via the Bookstore pursuant to this Agreement. Further to the foregoing, you also grant Blurb the option to issue vouchers, coupons, and other marketing and promotions-related offers from time-to-time (“Promotional Pricing”). For the avoidance of doubt, Promotional Pricing will not affect the retail price previously set by you, the Author or holder of the Title(s) in the Blurb Bookstore. Blurb will assume all pecuniary risks associated with any and all instances of Promotional Pricing made available to purchasers of your book(s) that you have selected to be made available in the Blurb Bookstore.
(b) License to distribute Your Books through Amazon.com (“Amazon”): In the event that You wish to distribute Your Books on Amazon, then and only then You thereby grant to Blurb the right to sublicense to Amazon a royalty-free, non-exclusive, worldwide, sublicenseable, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, Your Book Content for the purposes of distributing and making Your Books available via Amazon pursuant to their Amazon Participation Agreement available at http://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=1161302. You acknowledge that nothing in this Agreement will prevent or impair Amazon’s right to use without Your consent Your Books, to the extent that such use is allowable without a license from You under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party).
(c) License to distribute Your Books through iBooks Store™ (“Apple”): In the event that You wish to distribute Your Books in the Apple iBooks Store, then and only then You thereby grant to Blurb the right to sublicense to Apple a non-exclusive, worldwide, fully-paid and royalty-free license to use, copy, reproduce, display, distribute, modify, create derivative works of (for purposes of ensuring that Your Book Content is properly displayed into the space allotted and for associated promotional materials), and re-format Your Book Content only for the purposes of distributing and making Your Books available via Apple pursuant to this Agreement. You acknowledge that Apple, without Your consent, may use Your Book Content for promotional purposes in marketing materials and gift cards.
(d) License to distribute Your Books through Lightning Source Inc. (“LSI”): In the event that You wish to distribute Your Books through LSI and its affiliates, then and only then You thereby grant to Blurb the right to sublicense to LSI a non-exclusive, royalty-free, limited, transferable license solely to print, or cause to be printed, and distribute Your Book at Your request. The foregoing licenses are limited for the purpose of making Your Book available through the Bookstore or Distributor Channels at your request and does not provide Blurb or any Distributor Channel the right to materially modify Your Book’s content in a manner inconsistent with your request that the book be printed and distributed through the Bookstore and the Distributor Channels.
1.7 No Spam. You may not use “spam,” “blast-faxes” or recorded telephone messages to market Your Books. You may not spam, or attempt to deliberately subvert the results of the Blurb directory or search engine with false, misleading, or unnecessarily repetitive information.
1.8 Public Reputation. You acknowledge and agree that You will not use this Program to offer any of Your Books, or in connection with any products or services, that would be damaging to Blurb's, or its Distributor Channels’, reputation or that of its or their employees, board members, shareholders, licensors, or partners.
1.9 Distributor Channel Requirements. Your distribution of Books through a Distributor Channel is contingent upon Your agreement to such Distributor Channel’s standard terms of service. Some of our Distributor Channels may only distribute certain types of books (e.g. only trade paperback books) and it is Your responsibility to confirm that Your Books are eligible for distribution through the applicable Distributor Channel. You acknowledge and agree that You will review each Distributor Channel’s content guidelines, acceptable use policies, and/or other policies governing the distribution of Books on such Distributor Channel’s distribution platform to ensure that Your Book(s) qualify for distribution through such Distributor Channel.
(a) Enrollment in a Distributor Channel’s distribution may be contingent upon payment of a one-time or periodic program fee (“Program Fee”) that must be paid to Blurb as set forth in the checkout process for such Distributor Channel on the Site. By selecting to distribute Your Book(s) through a particular Distributor Channel, You agree to pay the applicable Program Fee as identified to You at checkout using the payment method You select. In the event that the applicable Program Fee is identified in the checkout process as periodic, You must pay the periodic Program Fee in order to use the Program’s applicable services for the specified time period. At the end of such time period, You will be notified of the expiration of the term with the option to re-enroll in such services. Failure to pay the periodic Program Fee as indicated in the checkout process will result in an immediate termination of Your access to the Program’s applicable services. You must then re-enroll in the Program and pay the appropriate Program Fee in order to re-establish Your access to such services. All Program Fees are non-refundable.
(b) Distribution through our Distributor Channels may require that an International Standard Book Number (“ISBN”) be assigned to Your Book prior to distribution. Depending on the applicable Distributor Channel, You may be permitted to provide Your own ISBN or You may secure an ISBN through Blurb.
1.10 Publishing Responsibilities. YOU ACKNOWLEDGE AND AGREE THAT, NOTWITHSTANDING THE METHOD YOU USE TO OBTAIN AN ISBN FOR YOUR BOOK(S), BLURB IS NOT THE PUBLISHER OF YOUR BOOKS (INCLUDING YOUR CONTENT) AND YOU WILL NOT STATE OR OTHERWISE SUGGEST THAT BLURB IS THE PUBLISHER OF YOUR BOOKS. YOU REPRESENT AND WARRANT THAT YOU ARE THE PUBLISHER OF YOUR BOOKS (INCLUDING YOUR CONTENT) AND, IN ANY CASE, THAT YOU BEAR THE FULL AND ULTIMATE RESPONSIBILITY FOR THE PUBLICATION AND DISTRIBUTION OF YOUR BOOKS (INCLUDING YOUR CONTENT). You further represent and warrant that (a) You will comply with all laws, rules, regulations and orders of any governmental authority having jurisdiction over Your performance hereunder as applicable in each country (including any local legal requirements with respect to Your publication of Your Books, such as making any necessary notifications and filings of copies of Your Books); (b) You have all requisite right, power and authority to enter into this Agreement and perform Your obligations hereunder; (c) prior to Your delivery of Content to us You have or have obtained all rights, clearances and permissions to grant the licenses You grant hereunder that are necessary for us, and for our Distributor Channels, to distribute Your Book under this Agreement without any further payment obligation or action by us or our Distributor Channels; (d) You are granting us and our Distributor Channels the rights, licenses and authorizations You grant hereunder free and clear of any encumbrances, and this Agreement does not violate or conflict with any other arrangements, understandings or agreements between You and any third party; (e) the Content (and the use thereof by us and by our partners) is not defamatory, libelous, obscene, or otherwise illegal, does not invade any right of privacy, and does not infringe upon any intellectual property right or right of publicity of any person or entity, and any recipe, formula, or instruction contained in the Content is accurate and is not injurious to the user or others; and (f) the Content complies with the Terms and Conditions, including restrictions on Prohibited Content. You hereby agree to promptly notify Blurb of any breach or suspected breach of this Section 1.10.
2. PROGRAM REVENUE
2.1 Program. The Program allows You to set a list price (the “Retail Price”) for each Book that You have created using Your Account for the Bookstore and applicable Distributor Channels. For Your Books that You sell in the Bookstore, the Retail Price (the “Bookstore Retail Price”) must be equal to or higher than the price that Blurb charges You for the Book (the “Base Price”). If You do not set a Blurb Retail Price for a Book, the Blurb Retail Price will be deemed to be the Base Price. For Your Books that You select to sell through one or more of our Distributor Channels, the Retail Price (each, a “Distributor Channel Retail Price”) must be higher than the Base Price plus any additional fees and shipping costs charged by such Distributor Channel (each, the “Distributor Base Price”). Once You have enrolled in the Program, any of the Blurb Books created through Your Account will be eligible, at Your election, for sale in the Bookstore at the applicable Retail Price to third parties through the Bookstore or through Distributor Channels You have selected to distribute Your Book(s).
2.2 Program Profit. For each of Your Books that is sold through the Bookstore or a Distributor Channel, You may be entitled to receive the “Program Profit.” For Your Books which are distributed on the Bookstore, the Program Profit is calculated by subtracting the Base Price from the Retail Price. For Your Books which are distributed by one of our Distributor Channels, the Program Profit is calculated by subtracting the Distributor Base Price for that Distributor Channel from the Distributor Channel Retail Price for that Distributor Channel. The Program Profit for each of Your Books distributed through the Program accrues at the end of the month in which Blurb has received full payment for closed transactions, minus any return fees accrued as of the last Program Profit payout but unpaid as of the end of such month, for the Book through the Bookstore or the applicable Distributor Channel. Program Profits will appear as “pending” until each transaction has closed. In the event an order is placed late in the month, Program Profits may not be applied to Your Account until the month in which such transaction has closed. Because calculation of fees and shipping costs for each Distributor Channel may vary, we encourage You to review the Distributor Channel profit calculations on Your Book’s settings page to help You better understand these practices.
2.3 Reports and Program Payments. Blurb will use commercially reasonable efforts to provide sales reporting via Your Account, including (a) the number of Your Books sold through the Bookstore, and, if available, through each Distributor Channel, during the current month that Your transactions have closed; and (b) a calculation of the Program Profit owed by Blurb to You in the current month based on (a) above minus any return fees. Within forty-five (45) days after the end of a calendar month, Blurb shall send You the Program Payment minus a processing fee (“Processing Fee”), unless the amount of the Program Payment is less than the thresholds set forth below (the “Payment Threshold”), in which case the Program Payment will be withheld by Blurb and paid to You in accordance with the above process at the end of the calendar month in which the aggregate Program Payments is equal to or exceeds the Payment Threshold. Payment Threshold and Processing Fee will vary depending upon the currency preference You have selected, and are defined as follows:
USD Payment Preference
Check Processing Fee: USD $5.00
PayPal Processing Fee: USD $1.00
Payment Threshold: USD $25.00
GBP Payment Preference
PayPal Processing Fee: GBP £1.00
Payment Threshold: GBP £12.50
EUR Payment Preference
PayPal Processing Fee: EUR €1,00
Payment Threshold: EUR €17,50
CAD Payment Preference
PayPal Processing Fee: CAD $1.00
Payment Threshold: CAD $25.00
AUD Payment Preference
PayPal Processing Fee: AUD $1.00 Payment Threshold: AUD $30.00
2.4 Payment by Check (USD only). If You elect to be paid by check (only available for payments in USD), Blurb will make the Program Payments to You by sending a check to the mailing address that You have provided in connection with Your Account (the “Program Payment Address”). Any check mailed to You is only valid for ninety (90) days from its issuance. You may request a re-issuance of a check only if such check was cancelled. You are fully responsible to provide a valid, current, complete, and accurate Program Payment Address and any obligations Blurb may have to pay you are satisfied upon Blurb’s attempt to mail the check to the Program Payment Address currently on file. Your failure to maintain the Program Payment Address may result in you not receiving the Program Payments.
2.5 Payment by PayPal. If You elect to be paid via PayPal, Blurb will make the Program Payments to You by utilizing PayPal’s payment system to the PayPal account You have provided in connection with Your Account (the “Program Payment PayPal Account”). Once the payment is submitted via PayPal, You have thirty (30) days to claim the funds or the funds are automatically returned to Blurb and forfeited by You. Your use of the Program Payment PayPal Account is subject to PayPal’s standard terms and conditions and Blurb is not responsible for Your use of the Program Payment PayPal Account. You are fully responsible to provide a valid, current, complete, and accurate Program Payment PayPal Account and all information necessary for Blurb to be able to send payment to such Program Payment PayPal Account and any obligations Blurb may have to pay you are satisfied upon Blurb’s attempt to mail the check to the Program Payment Address currently on file. Your failure to do maintain the Program Payment PayPal account and related information may result in you not receiving the Program Payments.
2.6 Distributor Channel for Amazon Returns. By electing to distribute Your Books through the Distributor Channel for Amazon, You acknowledge that Amazon requires that You accept returns of Your Books. You will not be paid Program Profit for sales of such returned books. The costs of all such returns, which is calculated by multiplying the number of each of Your Books returned by the Base Price for such Book, together with any processing or similar charges that Amazon may require, may be offset against any existing or future Program Payments owed to You, or you may be invoiced for the cost of the returned Books. Within forty-five (45) days of the end of each calendar month, Blurb may choose to ship any such processed returns of Your Books to You at Your expense.
2.7 No Payment. Blurb will not pay the Program Profit for any of Your Books that are created or distributed in breach of this Agreement, the Term and Conditions, or the End User License Agreement for Blurb software (“EULA”), including, but not limited to, Section 1 herein and the Section entitled “Prohibited Content” of the Terms and Conditions.
2.8 Tax Information. If You are a U.S. citizen, a non-U.S. citizen that currently lives in the U.S., or a non-U.S. citizen that owns a business in the U.S., You must provide Your taxpayer information to Blurb as required by the IRS, including but not limited to information required by the IRS for the purpose of issuing a 1099 form for Your earnings. If Blurb does not have current taxpayer information for You on file for a particular year, payments due to You under this Agreement will not be made to You until December 31st of such year, and all of such payments will be subject to a thirty percent (30%) backup withholding which will be submitted to the IRS.
2.9 Termination Fees. If You or Blurb terminate Your Account, and You have less than the Payment Threshold in accrued but unpaid compensation then outstanding, Blurb may, in its sole discretion, charge You a processing fee to cover its administrative costs prior to sending You Your final payment. It is Your responsibility to update Your contact information, including Your email address, Program Payment Address and/or Program Payment PayPal Account, if it changes. If Your Account is inactive or terminated and we are unable to contact You using the contact information provided, we may also, at our discretion, charge a termination fee equal to the amount of unpaid Program Profit to cover our administrative costs.
2.10 Order Processing. Customers who buy Your Book(s) through the Bookstore will be deemed to be Blurb’s customers and accordingly, all of Blurb's rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. Blurb may change its policies and customer terms and conditions and operating procedures at any time. Customers who buy Your Books through Distributor Channels are subject to such Distributor Channel’s standard terms and conditions concerning customer orders, customer service, and product sales.
3. TERM AND TERMINATION
3.1 Term. This Agreement is effective upon the completion of the sign-up procedure for the Program and will remain in effect until terminated by either You or Blurb as provided in this section or as expressly provided elsewhere in this Agreement.
3.2 Termination. You may terminate this Agreement without cause at any time on thirty (30) days' written notice. Blurb may terminate this Agreement without cause at any time by providing You with thirty (30) days notice via email to the email address we currently have on file for You. Without limiting any other remedies available to it, Blurb may terminate this Agreement immediately upon notice if: (a) You fail to strictly comply with any term or provision of this Agreement, the Terms and Conditions, the EULA, or, as applicable, any policies or requirements associated with the distribution of Your Book through a Distributor Channel; (b) Blurb, in its sole discretion, determines that any of Your Books was not created in compliance with the Agreement, Terms and Conditions, or EULA; or (c) Blurb determines, in its sole discretion, that You and/or Your Books may create liability for or cause reputational harm to Blurb, Distributor Channels, or its or their suppliers, other affiliates, or third parties.
3.3 Effects of Termination. Upon termination of this Agreement, Blurb may delete any Content or other material related to the Program, stop selling Your Books to customers, and remove any or all of the Books from the Bookstore as well as from Distributor Channels’ sites, and have no liability to You or any third party for doing so. Blurb shall pay any Fees due and payable to You within forty-five (45) days after the end of the month in which termination occurs in accordance with Section 2.8 above. Neither party will have liability to the other party for termination of this Agreement as provided herein.
3.4 Survival. The provisions of Sections 1, 2.6, 2.7, 2.9, 2.10, 3.3, 3.4, 4, and 5 of this Agreement will survive any termination of this Agreement.
4. Indemnity. You agree to defend, indemnify, and hold Blurb, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of the distribution of Your Books via the Bookstore or our Distributor Channels in violation of this Agreement and/or arising from Your breach of any provision of this Agreement.
5. MISCELLANEOUS. You acknowledge that as a participant in the Program, You will receive reports from Blurb pursuant to Section 2, and You may receive other emails from us regarding the Program and You consent to receiving such emails from Blurb. Information about You as a participant in the Program (including personally identifiable information) may be processed by Blurb in the country where it was collected as well as other countries (including the United States) where laws regarding processing of personally identifiable information may be less stringent than the laws in Your country. You may not assign any of Your rights, or delegate any of Your duties, under this Agreement without the express prior written consent of Blurb, which Blurb may grant or withhold in its sole discretion, and any attempted assignment without such consent will be null and void.