LibreDigital

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AGENCY DISTRIBUTION AGREEMENT

This Agreement is between LibreDigital, Inc. ("LibreDigital"), having its principal place of business at 1835-B Kramer Lane, Suite 150, Austin, Texas 78758, and you ("Publisher"), and is effective on the date you click “I Agree” (the “Effective Date”).

LibreDigital desires to be appointed as Publisher’s agent for sales and delivery of digital books under certain conditions, and in exchange for a fee, on behalf of principal Publisher’s account, and Publisher is willing to appoint LibreDigital as its agent under such conditions and pay LibreDigital a fee.

In consideration of mutual promises, LibreDigital and Publisher (each a “Party” and collectively, “Parties”) hereby agree as follows:

  1. Definitions.

The following terms shall have the following meanings for purposes of this Agreement:


(a) “Artwork” means book covers, photos, drawings, and illustrations associated with Publisher Content, including any artwork that is included in copies of Publisher Content in digital format, and which has been provided by or on behalf of Publisher to LibreDigital. All Artwork provided to LibreDigital shall have been cleared for LibreDigital’s use.

(b) “Content File” means a digital file comprising at least an item of Publisher Content, associated Artwork, metadata, and Insert Content.

(c) “Customer Price” means the price displayed to the end-user, as set and designated by Publisher for each eBook by selecting from the prices set forth in Exhibit A.

(d) “Delivery Format” means LibreDigital’s or its Distributor/Agent’s defined set of content delivery parameters, including, without limitation, the defined parameters for content delivery format (epub, pdf, mobi, etc.) and content display (screen size, screen resolutions, and other color depth).

(e) “Device” means any device, application, or platform, whether now existing or yet to be developed, on which an eBook may be viewed or accessed, or which enables an eBook to be viewed or accessed, when purchased by an end user including, without limitation, electronic reading devices, digital content rendering devices, mobile phones, integrated circuits, etc.

(f) “Distributor/Agent” means LibreDigital’s distributor, reseller or agent with whom LibreDigital has a current agreement for the marketing, delivery, distribution or sale of eBooks via any method (e.g. an electronic store) for use on any Device.

(g) “eBook” means each copy of Publisher Content, Artwork, Insert Content (if any), Extras (if any) and metadata in electronic form authorized for distribution to an end user. Each eBook available for sale hereunder will be designated by its International Standard Book Number (ISBN) in the metadata.

(h) “Insert Content” means promotional content provided by or on behalf of Publisher and associated with Publisher Content, such as book reviews, author bios, forewords and similar content.

(i) “New Release” means a book during the seven (7) month period following its first publication in any format.

(j) “Preview” means an excerpt from each item of Publisher Content (e.g., the first chapter or 5% of the book) used to promote the corresponding Publisher Content, as selected by Publisher in the metadata. The Parties agree that Previews need not be protected using the Security Solution or be subject to any content usage rules other than limited for personal, non-commercial use.

(k) “Publisher Content” means publishable textual and graphical book content owned or controlled by Publisher that has been cleared for distribution in digital form.

(l) “Publisher Materials” means, collectively, materials furnished by or on behalf of Publisher to LibreDigital in furtherance of its appointment, including Publisher Content, Artwork, metadata, Insert Content, Previews and any extra bonus-type audio, video or audio-visual content (“Extras”).

(m) “Security Solution” means a proprietary digital rights management solution, if any.

(n) “Term” has the meaning set forth in Section 13 below.

(o) “Territory” worldwide.


  1. Agency Appointment.

(a) Publisher hereby appoints LibreDigital as its non-exclusive agent for the marketing and delivery of eBooks, directly by LibreDigital or through Distributors/Agents, on Publisher’s behalf in the Territory to end users for their personal, non-commercial use, and LibreDigital accepts such appointment. The Parties agree that distribution in certain countries may be subject to additional terms to be mutually agreed by the Parties.

(b) In furtherance of such appointment, LibreDigital may, or LibreDigital may authorize its Distributors/Agents to:

i. Market, solicit and obtain orders on Publisher’s behalf for eBooks from end users, including delivery of copies of Previews for free to potential eBook customers;

ii. Make copies of, format, and otherwise prepare Content Files as eBooks, including book cover Artwork, for download by end users or via other distribution methods to end users;

iii. Provide storage, searching, and hosting services to Publisher so end users may search for, obtain recommendations for, and acquire eBooks from Publisher via any method now known or yet to be developed (e.g. download from an electronic store) for use on any Device;

iv. Issue invoices for the purchase price payable by end users for eBooks;

v. Provide customer support;

vi. Use Artwork, Insert Content and metadata, and trademarks and logos associated with eBooks, as well as other images and materials provided by Publisher to LibreDigital, for promotional purposes in marketing materials and gift cards; and

vii. Do other things such as modify metadata as reasonably necessary to correct errors in metadata.

(c) Within a reasonable time after the Effective Date, LibreDigital will provide Publisher with a list of Devices and/or marketplaces which LibreDigital is currently supplying eBooks for, and a list of Distributors/Agents whom LibreDigital has engaged to market and solicit orders for the eBooks, as well as their limitations on Territory, if any. LibreDigital will notify Publisher of any additions to such list and provide Publisher with an opportunity to “opt out” of authorizing its eBooks for use on such additional Devices, marketplaces or distribution via any additional Distributors/Agents. Publisher will have fifteen (15) days from the date of LibreDigital’s notice of the original list and/or notice of each addition, as applicable, to notify LibreDigital in writing of any “opt out” elections. Failure to notify LibreDigital in writing of any “opt out” elections within such fifteen-day period will be deemed Publisher’s approval of such list or additions, as applicable. Publisher may not “opt out” of any Devices, marketplaces or Distributor/Agents it previously approved without LibreDigital’s consent, which shall not be unreasonably withheld.

3. Publisher Obligations.

(a) Publisher acknowledges that the breadth of eBook offerings is of the essence of the Agreement and the successful appointment. Publisher shall make best commercial efforts to make all Publisher Content (including revisions, re-printings, updates etc.) available to LibreDigital under its appointment, and, subject to the terms of this appointment, in no event less than the Publisher Content it provides to any other electronic distributor of Publisher’s content in digital form. If Publisher changes its business model for the sale of eBooks or Publisher Content away from the agency model, Publisher shall provide Agent with comparable distribution rights under the revised model.

(b) Publisher shall not discriminate against LibreDigital with respect to the permitted usage rules, functionality, and quality of any Publisher Content.

(c) Except for a limited-time, one-off promotion for a particular item of Publisher Content, or in the event of a specific objection by an author as to a specific New Release, Publisher shall provide and make available all of Publisher’s New Releases to LibreDigital under its appointment on the same day and date as Publisher makes any New Release available to end users in any format, including physical copies.

(d) Publisher shall deliver Content Files to LibreDigital, at Publisher's expense, in the Delivery Format and using the delivery method reasonably specified by LibreDigital. In the event the Parties have entered into a Master SaaS Agreement, then Publisher will engage LibreDigital to perform the Delivery Format Services for the Content Files pursuant to the terms and conditions of such Agreement. Publisher is responsible to ensure that the Content Files meet the Delivery Format specifications.

(e) Publisher shall not include any digital watermark or similar technologies in the Content File without LibreDigital’s approval, which approval shall not be unreasonably withheld.

(f) Publisher shall promptly notify LibreDigital in writing of any potential copyright infringements with respect to Publisher’s eBooks of which Publisher becomes aware, including any Clearance Issues as defined under Section 6 below.

4. Royalties.

Publisher shall be responsible for and shall timely pay any royalties or license fees owed to authors, illustrators, artists, talent and other rights holders or contributors (if any) arising from the use of any Publisher Materials in furtherance of LibreDigital’s appointment as provided herein, including any payments required under collective bargaining agreements. For the sake of clarity, Publisher acknowledges and agrees that no royalty, fees, or other compensation is payable by LibreDigital to Publisher or any third party for the rights described in Section 2(b)(vi) and 8(a). Publisher shall indemnify and hold harmless LibreDigital for any claims of authors, illustrators, artists, talent and other rightsholders or contributors (if any) against LibreDigital for additional remuneration or participation in the exploitation of the eBooks under applicable law.

  1. Agency Commission; Tax; and Reporting.

(a) For sales of eBooks, LibreDigital shall be entitled to and shall receive a commission based on the Customer Price payable by eBook purchasers net of any and all taxes collected (“eBooks Proceeds”). The “sale” of an eBook shall occur when an eBook is first delivered to an end user.

(b) If, for any given eBook New Release that in physical format is or would be categorized as a hardcover version, the then-current Customer Price is materially higher than its customer price offered by any other eBook distributor to consumers in the Territory ("Other Customer Price"), then, Publisher shall, within two days following Publisher becoming aware of, or being made aware of such Other Customer Price, set a new Customer Price not to exceed the lowest known Other Customer Price. Publisher shall not be required to set a new lower Customer Price more than once in any fifteen (15) day period.

(c) After deducting LibreDigital’s commission, and any taxes collected by LibreDigital or its Distributors/Agents under Section 5(f) hereof, from eBook Proceeds, LibreDigital shall either remit to Publisher or issue a credit in Publisher’s favor, subject to a minimum monthly remittance threshold amount of $500, the remaining balance by electronic funds transfer (“EFT”) no later than seventy-five (75) days following the close of the previous monthly sales period. If Publisher has not met the minimum $500 threshold amount after 12 months, Publisher may request, in writing, LibreDigital remit Publisher’s then-current remittance amount. Publisher may not request, and LibreDigital shall not pay, a remittance of less than $500 more than once in any twelve month period. Payment shall be made in United States dollars, unless the Parties otherwise agree to a different currency with respect to sales outside of the United States.

(d) Publisher is responsible for any fees (e.g., wire transfer and EFT fees) charged by Publisher’s bank or any intermediary banks. Publisher shall provide LibreDigital with Publisher’s banking information.

(e) LibreDigital or its Distributors/Agents shall collect applicable sales transaction taxes from consumers and remit such amounts to the appropriate tax authorities. Upon Publisher’s request, LibreDigital shall provide confirmation, using means reasonably designated by LibreDigital, that LibreDigital, or its Distributors/Agents, has collected and remitted any taxes required under Section 5(f) to the appropriate tax authorities.

(f) If a purchase is subject to withholding or similar tax, or sales, use, goods and services, value added, or other tax or levy not collected by LibreDigital or its Distributors/Agents under Section 5(g) below, or any other tax or other government levy of whatever nature, the full amount of that tax or levy shall be solely for Publisher’s account, and shall not reduce the commission to which LibreDigital or its Distributors/Agents are entitled.

(g) LibreDigital or its Distributors/Agents may withhold any taxes, duties, charges or levies on payments by LibreDigital to Publisher that LibreDigital, in its discretion, determines are required by applicable law, rule or regulation, and LibreDigital or its Distributors/Agents shall remit any such withholding to the appropriate tax authority. LibreDigital will apply a reduced rate of withholding tax, if any, provided for in any applicable income tax treaty only if Publisher furnishes LibreDigital with such documentation required under that income tax treaty or otherwise satisfactory to LibreDigital, sufficient to establish Publisher’s entitlement to the benefit of that reduced rate of withholding tax. Upon Publisher’s timely request to LibreDigital in writing, using means reasonably designated by LibreDigital, LibreDigital will use commercially practical efforts to report to Publisher the amount of LibreDigital’s payment of withholding or similar taxes to the competent tax authorities on Publisher’s behalf. Publisher will indemnify and hold LibreDigital harmless against any and all claims by any competent tax authority for any underpayment of any such withholding or similar taxes, and any penalties and/or interest thereon, including, but not limited to, underpayments attributable to any erroneous claim or representation by Publisher as to Publisher’s entitlement to, or Publisher’s disqualification for, the benefit of a reduced rate of withholding tax.

(h) Publisher shall indemnify and hold LibreDigital and its Distributors/Agents harmless against any and all claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest thereon.

(i) In the event that LibreDigital or its Distributors/Agents collects any amounts corresponding to the purchase price for any of Publisher’s eBooks before Publisher has provided LibreDigital with any tax documentation required under this Agreement, LibreDigital or its Distributors/Agents may not remit those amounts to Publisher, but may hold those amounts in trust for Publisher, until such time as Publisher has provided LibreDigital with the required tax documentation. Upon receipt of all required tax documents from Publisher, LibreDigital will remit to Publisher any amounts held in trust by LibreDigital or its Distributors/Agents for Publisher, without interest, under this Section 5(j), in accordance with the terms of the Agreement.

6. LibreDigital Obligations.

(a) LibreDigital and its Distributors/Agents shall condition use of eBooks on an end user’s acknowledgement of terms of use, which terms shall state that any use of eBooks is for personal and non-commercial use only, and that the sale of eBooks does not provide any commercial or promotional use rights in any eBook.

(b) LibreDigital and its Distributors/Agents shall be responsible for all marketing, storage, hosting and delivery costs associated with LibreDigital’s appointment activities, except as otherwise agreed by the Parties in writing.

(c) If Publisher notifies LibreDigital that, for reasons beyond its control, it is no longer able to authorize LibreDigital to use certain rights permitted under its appointment, if LibreDigital’s exercise of its rights will cause Publisher to violate the rights of a third party, or if an author or heirs object to LibreDigital’s exercise of its authorization under its appointment (each a “Clearance Issue”), then Publisher may withhold or withdraw such authorization, in which case LibreDigital and its Distributors/Agents shall cease promotion and sales of eBooks using such withdrawn rights within five (5) business days of such notice (for the avoidance of doubt, LibreDigital and its Distributors/Agents may continue to provide re-downloads of previously purchased eBooks). Publisher shall not discriminate against LibreDigital or its Distributors/Agents regarding any withdrawal requests.

(d) LibreDigital and/or its Distributors/Agents may in its and their discretion choose to not market, or to remove from marketing, any eBooks from Publisher.

7. Parental Advisory.

In furtherance of enabling customers to make informed purchasing decisions, Publisher may provide LibreDigital with appropriate content ratings for corresponding Publisher Content.

8. Names and Likenesses; Promotional Use and Opportunities.

(a) LibreDigital and its Distributors/Agents may use the names and authorized likenesses of, and biographical material for, any eBook author, illustrator or other talent, as well as Previews, Insert Content, or Artwork, in furtherance of its appointment. Further written approval from Publisher shall be required if any name, likeness or identifying material is used by LibreDigital, other than in furtherance of its appointment, including using as an endorsement of LibreDigital, the Online Store, or other products.

(b) For the avoidance of doubt, generally, LibreDigital may promote the eBooks, the Publisher, the Online Store and content on the Online Store in its sole discretion.

9. Copyright Notices; Ownership.

(a) Publisher shall provide an appropriate copyright notice in the Content File, or as reasonably requested by LibreDigital, which LibreDigital and its Distributors/Agents shall display for each eBook.

(b) As between the Parties, subject to any pre-existing rights of LibreDigital, all right, title and interest in and to (i) Publisher Content, (ii) Artwork, (iii) Previews, (iv) Insert Content, (v) all copyrights and equivalent rights embodied therein, and (v) any other materials furnished by Publisher, shall remain the property of Publisher; nonetheless, LibreDigital shall not have any lesser rights than it would otherwise have as a member of the public.

10. Press Release.

Neither Party shall make or issue any public statement or press release regarding this Agreement or its subject matter without prior written approval from the other Party.

11. Data Protection.

(a) LibreDigital shall, and shall require that its Distributors/Agents, protect materials furnished by Publisher in a manner no less restrictive than LibreDigital and its Distributors/Agents protect materials furnished by any other book publisher, including the use of any Security Solutions provided by Publisher, and the implementation and enforcement of Content Usage Rules, as set forth in Exhibit B, except as otherwise agreed by Publisher and LibreDigital. If the applicable Security Solution is compromised such that eBooks are being made widely available without restriction, having a material adverse effect on the commercial purpose of the appointment and this Agreement, then LibreDigital shall use commercially reasonable efforts to cure such compromise. If the breach is not substantially cured within thirty (30) days, then Publisher may stop providing additional New Releases to LibreDigital, and if the breach is not substantially cured within sixty (60) days, then Publisher may suspend LibreDigital’s appointment until cured.

(b) In the event of a security breach of distribution or storage servers such that unauthorized access to Publisher Content becomes available, then LibreDigital will, and will require its Distributors/Agents to, disable all access to such servers or destroy content on such servers as soon as possible, but in any event within forty-eight (48) hours.

(c) Publisher Materials in LibreDigital’s and its Distributors/Agents’ control or possession shall reside only on secure network servers or equivalent devices owned or controlled by LibreDigital, its Distributors/Agents, or its or their contractors with restricted access.

12. Record-Keeping and Audit.

(a) LibreDigital shall, and shall require that its Distributors/Agents, maintain complete records regarding sales of eBooks and proceeds payable to Publisher for at least three (3) years following the applicable monthly sales period.

(b) Upon no less than thirty (30) days advance written notice, and within two (2) years following the applicable monthly sales period (the “Audit Period”), Publisher, at its expense, may appoint an independent certified public accountant to audit directly applicable records of LibreDigital at LibreDigital’s principal place of business in the United States for the sole purpose of verifying proceeds due Publisher. An audit shall take place during regular business hours, and shall not occur more than once during any twelve (12) month period. The certified public accountant should not be engaged in an audit of LibreDigital or Publisher, or on a contingency-fee basis, and must provide to LibreDigital a confidentiality agreement that protects LibreDigital’s confidential information no less than the terms of this Agreement or Publisher protects its own similar information. Publisher may audit a record only once, and no audit shall be conducted for a period spanning less than six (6) months.

(c) Unless Publisher provides a detailed objection within two (2) years following the applicable monthly sales period, Publisher shall be deemed to consent to all reports, and reports shall not be subject to objection by Publisher for any reason. Publisher agrees that LibreDigital’s books and records contain “Confidential Information” (as defined below).

  1. Term, Termination and Effect of Termination.

(a) The term of this Agreement shall start on the Effective Date and shall continue for a period of two (2) years thereafter, unless terminated earlier in accordance with the Agreement (“Initial Term”). This Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term”) unless terminated by either Party via written notice provided to the other Party at least sixty (60) days before the next date of automatic renewal. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term”.

(b) Either Party shall have the right to terminate this Agreement prior to the expiration of the Term if the other Party (i) becomes insolvent, (ii) files a petition in bankruptcy, (iii) makes an assignment for the benefit of creditors, or (iv) breaches a material term of this Agreement, unless such breach is cured within thirty (30) days from notice, or if not able to be so cured, then resolved to the other Party’s reasonable satisfaction.

(c) Sections 1, 4, 5, 6(b), 9(b), 10, 12, 13, 14, 15, 16, and 17 shall remain in full force and effect following the termination or expiration of this Agreement.

(d) If this Agreement terminates or expires, then Publisher Materials in LibreDigital’s or its Distributors/Agents’ possession or control shall be promptly destroyed, excluding copies necessary for LibreDigital’s and its Distributors/Agents’ standard customer support practices, e.g., re-downloads (subject to applicable terms in this Agreement), or required to be maintained by applicable law, rule or regulation.

  1. Indemnification and Limitation of Liability.

(a) Neither LibreDigital nor its Distributors/Agents shall have any product liability for any eBook. Publisher shall be solely responsible for any and all product warranties relating to eBooks sold in connection with this Agreement.

(b) Publisher shall be solely responsible for, and neither LibreDigital nor its Distributors/Agents shall have any responsibility or liability whatsoever with respect to, any and all claims, suits, liabilities, losses, damages, costs and expenses arising from, or attributable to, Publisher Materials and/or use by any end user, including, but not limited to: (i) claims of breach of warranty; (ii) product liability claims; and (iii) claims that any of the Publisher Materials and/or the end user’s possession or use of those materials infringes the copyright or other intellectual property rights of any third party.

(c) In the event that LibreDigital or any of its Distributors/Agents receive any notice or claim from any end user arising from a product liability issue for Publisher Content, LibreDigital or its Distributors/Agents may refund the end user the full amount of the price paid by the end user. In the event of such a refund to an end user, Publisher shall reimburse, or grant LibreDigital a credit for, an amount equal to the price for that eBook. LibreDigital will nonetheless have the right to retain its earned commission on, or other fees paid for, the eBook sale, notwithstanding the refund of the price to the end user.

(d) LibreDigital will indemnify and hold harmless, and upon Publisher’s request, defend, Publisher and its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of a claim by a third party by reason of a breach of any warranty, representation, covenant or obligation of LibreDigital under this Agreement; or any claim that the technology used by LibreDigital in its appointment infringes the intellectual property rights of another party. Publisher shall promptly notify LibreDigital of any such claim, and LibreDigital may assume control of the defense or settlement of such claim. Publisher shall have the right, at its expense, to participate in the defense thereof under LibreDigital’s direction.

(e) Publisher will indemnify and hold harmless, and upon LibreDigital’s request, defend, LibreDigital and its affiliates (and their respective directors, officers and employees) from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of a claim by a third party by reason of a breach of any warranty, representation, covenant or obligation of Publisher under this Agreement; or any claim that Publisher Materials infringe the intellectual property rights of another party. LibreDigital shall promptly notify Publisher of any such claim, and Publisher may assume control of the defense or settlement of such claim. LibreDigital shall have the right, at its expense, to participate in the defense thereof under Publisher’s direction.

(f) In the event that a claim is brought or threatened against LibreDigital related to the eBooks or Publisher Materials, or if LibreDigital reasonably believes there is a substantial likelihood of such a claim, LibreDigital will have the right, but not the obligation, in its sole discretion to suspend its and its Distributors/Agents distribution of the eBooks or Publisher Materials. LibreDigital will notify Publisher of any such suspension as soon as practicable thereafter.

(g) EXCEPT FOR A PARTY’S (i) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR (ii) INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST DATA, WHETHER ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE RESULTING FROM OR RELATED TO THIS AGREEMENT, WHETHER OR NOT SUCH PARTY KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF ANY SUCH DAMAGES.

(h) EXCEPT FOR A PARTY’S (i) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR (ii) INDEMNIFICATION OBLIGATIONS, A PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR OWED TO THE OTHER PARTY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE

(i) NO WARRANTY OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS OR SERVICES SUPPLIED BY LIBREDIGITAL OR ITS DISTRIBUTORS/AGENTS OR ANY ELEMENTS THEREOF IS GIVEN TO, OR SHOULD BE ASSUMED BY, PUBLISHER, AND ANY SUCH WARRANTIES AND TERMS ARE HEREBY EXCLUDED.

  1. Confidentiality.

(a) Each Party acknowledges that by reason of this Agreement it may have access to certain information and materials concerning the other Party's business plans, customers, technology and products that are confidential and of substantial value to such Party, which value would be impaired if such information were disclosed to third parties or used for purposes other than as expressly permitted by this Agreement (referred to in this Agreement as “Confidential Information”). Each Party agrees to maintain any and all Confidential Information received from the other, in confidence, and agrees not to disclose or otherwise make available such Confidential Information to any third party (except to Distributors/Agents) without the prior written consent of the disclosing Party. Each Party agrees that Confidential Information shall be disclosed to its employees and other personnel under its control and supervision and Distributors/Agents for purposes of performing under this Agreement solely on a need-to-know basis in furtherance of this Agreement, and solely to those individuals or Distributors/Agents who are bound by a written non-disclosure agreement having terms no less restrictive than the non-disclosure terms of this section, unless required by law, or court or governmental order. To the extent Publisher’s disclosure of Confidential Information is required by law, Publisher shall take reasonable steps to notify LibreDigital of such requirement before disclosing said Confidential Information and shall take reasonable steps to obtain protective treatment of said Confidential Information. Confidential Information shall be deemed to include (i) information marked confidential, if conveyed in writing, (ii) information identified orally as confidential, if conveyed orally, and (iii) or would be understood by a reasonable person to be confidential given the circumstances surrounding the disclosure. Confidential Information shall not be deemed to include any information which (A) is publicly known at the time of the disclosure, (B) becomes publicly known other than by breach of the terms of this section, (C) becomes known to the receiving Party, without restriction, from a source free of any obligation of confidentiality and without breach of this section, or (D) is independently developed by the receiving Party.

(b) The terms of this Agreement shall constitute Confidential Information of each Party. However, a Party may disclose the terms of this Agreement as required under United States or other applicable securities regulations, or in furtherance of a proposed sale, acquisition, or merger of substantially all of the Party’s business interests related to this Agreement as long as such disclosure is made under a duty of confidentiality.

  1. Additional Representations and Warranties of the Parties.

(a) The Parties agree that the nature of their relationship is that of Publisher as principal and LibreDigital as agent.

(b) LibreDigital shall not pledge, mortgage or otherwise encumber any part of the Publisher Materials.

(c) Each Party agrees that it has full authority to enter into this Agreement, and to fully perform in a professional and competent manner.

(d) Each Party agrees that it owns or controls the necessary rights in order to make the grant of rights herein, and that the exercising such rights shall not violate or infringe the rights of any third party.

(e) Each Party agrees to perform in compliance with any applicable law, rule and regulation.

  1. General Provisions.

(a) Contractors. LibreDigital may contract with third parties (other than Distributors/Agents) in furtherance of LibreDigital’s appointment, provided such third parties are subject to terms no less restrictive than the terms LibreDigital is subject to under this Agreement. LibreDigital shall be responsible for the performance of such third parties while under LibreDigital’s control and supervision.

(b) Entire Agreement, Modification. This Agreement, including any schedules and exhibits, contains the entire understanding of the Parties relating to its subject matter, and supersedes all previous understandings between the Parties. This Agreement cannot be changed or modified except by a writing signed by the Parties. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the Parties.

(c) Waiver. The failure of either Party to enforce at any time the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. The express waiver by either Party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

(d) Binding on Successors and Assignment. This Agreement shall be binding on the assigns, heirs, executors, administrators, and successors (whether through merger, operation of law, or otherwise) of the Parties. Either Party may assign this Agreement or any of its rights or obligations hereunder to a successor to substantially all of its business interests related to this Agreement or to any of the Party’s subsidiaries or affiliated companies, without the written consent of the other Party.

(e) Notices. Any notice under this Agreement shall be given in writing and shall be deemed to have been delivered and given: (i) on the delivery date if delivered personally; (ii) upon delivery by confirmed-receipt facsimile; (iii) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) five (5) business days after the mailing date, whether or not actually received, if sent by certified mail, return receipt requested, postage and charges prepaid.

If to Publisher:

[The address you provided during the registration process, unless you notify LibreDigital of an alternate address.]

If to LibreDigital:

LibreDigital Inc.

1835-B Kramer Lane

Suite 150

Austin, Texas 78758

Attention: Legal Department

Fax: (512) 334-5151

(f) Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Texas, without regard to its principles of conflict of laws. For any suit, action or other proceeding arising from or relating to this Agreement, the Parties hereby irrevocably agree to personal jurisdiction and exclusive venue of the United States District Court for the Western District of Texas (Austin Division, Travis County) and any Texas State Court within Travis County, Texas. Both Parties hereby waive the right to object to that choice of law, personal jurisdiction or venue.

(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.

(h) Remedies. To the extent permitted by applicable law, the rights and remedies of the Parties provided under this Agreement are cumulative and in addition to any other rights and remedies of the Parties at law or equity.

(i) Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting the Agreement.

(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their authorized successors and permitted assigns. Nothing is intended to confer upon any person or entity, other than the Parties and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

By clicking “I Agree”, you are confirming that you have read and agree to these terms.


EXHIBIT A

Commission Due to Publisher (for all Devices and Distributor / Agents other than Apple): 50% of the Customer Price payable by eBook Proceeds. The “sale” of an eBook shall occur when an eBook is first delivered to an end user.

Commission Due to Publisher when Apple serves as the Distributor / Agent: 55% of the Customer Price payable by eBook Proceeds. The “sale” of an eBook shall occur when an eBook is first delivered to an end user.

Customer Pricing

United States (all prices in US dollars)

For New Release hardcover titles with list prices of $30 or less, Publisher shall determine in its discretion a Customer Price not greater than the Maximum Customer Price from among the following corresponding tiers:

Publisher Hardcover List Price

Maximum Customer Price

$0.01-22.00

$9.99

$22.01-$24.00

$10.99

$24.01-$25.00

$11.99

$25.01-$27.50

$12.99

$27.51-$30.00

$14.99

$30.01-$35.00

$16.99

$35.01-$40.00

$19.99

Maximum Customer Price means the highest tier for that range of list price, provided that Publisher can set a lower Customer Price in its discretion in dollar increments that end in “--.99”.

If Publisher fails to select a Customer Price for any eBook such eBook shall have a Customer Price of $9.99.

For books then-currently on the NYT Bestseller List that list for $30 or less, the Customer Price will be no greater than $12.99; and that list between $30.01-35, the Customer Price will be no greater than $14.99. “NYT Bestseller List” means the Hardcover Adult Fiction, Hardcover Adult Nonfiction and Hardcover Advice bestseller lists as published on the New York Times website, excluding the below-the-line “Also Selling” titles also known as the “Expanded List”.

For all books published in mass market or trade paperback with a list price of $22.00 or less, the Customer Price set by Publisher shall not be greater than $9.99 during the first twelve (12) months after publication in those formats. Thereafter, Publisher may set whatever Customer Price it deems appropriate in its discretion, provided that LibreDigital does not have to make such eBooks available if LibreDigital determines the price is unrealistic. For any such book with a list price greater than $22.00, Publisher may set whatever Customer Price it deems appropriate in its discretion, provided that LibreDigital does not have to make such eBooks available if LibreDigital determines the price is unrealistic.

For eBooks for which there is no corresponding physical product, books that are (i) not adult fiction or non-fiction and not primarily text for reading, (ii) enhanced books (provided Publisher provides LibreDigital with the standard version), (iii) New Release hardback books that lists for more than $40, or (iv) not a New Release hardback book, Publisher may set whatever Customer Price it deems appropriate in its discretion, provided that LibreDigital does not have to make such eBooks available if LibreDigital determines the price is unrealistic.

Fees for other countries and the applicable currency will be as mutually agreed and may be subject to additional terms and conditions.


EXHIBIT B

Content Usage Rules

1. Definitions.

(a) “Non-Transfer Device” means a Device (including, without limitation, a digital content rendering device or mobile phone) that uses the Security Solution, but cannot transfer an eBook along with their usage rights keys to any other Device, except if that other Device is already authorized to acquire that eBook.

(b) “Transfer Device” means a Device that uses the Security Solution, and can transfer eBooks along with their usage rights keys to any other Device.

2. Usage Rules.

End users acquiring eBooks may:

• Use eBooks on up to five (5) Transfer Devices and an unlimited number of Non-Transfer Devices at the same time;

• Use eBooks solely for end user’s personal and non-commercial use; and

• Re-download previously purchased eBooks from the source the eBook was obtained (e.g. and online store).

• Copy/paste and print no more than 2 pages at a time (no burning to disk)**

** Provided that, the above copy/paste and print usage rules for Publisher Content shall be no less restrictive than LibreDigital or its Distributors/Agents, as applicable, allow for Publisher Content from any other provider of similar Publisher Content.

AGENCY ADDENDUM Number One

FOR eBOOK DISTRIBUTION IN CANADA

This Agency Addendum Number One (the “Addendum”) is placed under and is incorporated by reference into the Agent Agreement (the “Agreement”) entered into by LibreDigital, Inc. (“LibreDigital”) and you (“Publisher”).

The effective date of this Addendum is the date you click “I Agree” (“Addendum One Effective Date”).

WHEREAS, the Parties have entered into the Agreement to provide distribution of Publisher’s digital books, and

WHEREAS, Publisher now desires LibreDigital to distribute Publisher’s digital books through distribution channels in Canada, subject to the terms of this Addendum.

NOW THEREFORE, in consideration of the covenants and conditions contained herein, the Parties agree as follows:

1. The Parties hereby incorporate by reference all the terms of the Agreement, except as specifically modified or otherwise set forth herein. All capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement.

2. If there is a conflict between the terms in this Addendum and the terms in the Agreement, the terms in this Addendum will prevail.

3. All prices set forth herein are stated in Canadian dollars. However, all payments made to Publisher pursuant to this Addendum shall be made in United States dollars (US$) as per the Agreement.

4. Notwithstanding anything to the contrary, the following provisions shall govern taxes relating to sales under this Addendum:

(a) GST/HST. Terms defined in the Excise Tax Act (Canada) (the “ETA”) have the same meaning when used in this section.

(i) If Publisher is a resident of Canada or a non-resident of Canada that is required to register for GST/HST pursuant to the ETA, Publisher (A) shall have registered (or submitted an application to register) for GST/HST to the CRA, with an effective GST/HST registration date of no later than the Addendum Effective Date, shall provide LibreDigital with satisfactory evidence thereof, and shall remain so registered throughout the Term; (B) agrees to enter into the election pursuant to subsection 177(1.1) of the ETA to have LibreDigital or its Distributors/Agents collect, account for and remit GST/HST on sales of eBooks made to end-users in Canada on Publisher’s behalf hereunder, and to complete and return to LibreDigital Form GST506; and (C) acknowledges that the commission payable by Publisher hereunder includes GST/HST at the Ontario rate as applicable from time to time.

(ii) If Publisher is not registered for GST/HST, Publisher (A) certifies that Publisher is not resident in Canada and does not carry on business in Canada for purposes of the ETA; (B) acknowledges that LibreDigital or its Distributors/Agents will charge, collect and remit GST/HST on sales of eBooks to end-users in Canada made on Publisher’s behalf hereunder; and (iii) acknowledges that the commission payable by Publisher to LibreDigital hereunder is zero-rated for GST/HST purposes.

(b) Quebec Sales Tax. Terms defined in an Act respecting the Quebec Sales Tax (the “QSTA”) have the same meaning when used in this section.

(i) If Publisher is a resident of Quebec or a non-resident of Quebec that is required to register for QST pursuant to the QSTA, Publisher (A) shall have registered (or submitted an application to register) for QST to the MRQ with an effective QST registration date of no later than the Addendum Effective Date, shall provide LibreDigital with satisfactory evidence thereof, and shall remain so registered throughout the Term; (B) agrees to enter into the election pursuant to section 41.0.1 of the QSTA to have LibreDigital or its Distributors/Agents collect, account for and remit QST on sales of eBooks to end-users in Quebec made on Publisher’s behalf hereunder, and to complete, sign and return to LibreDigital Form FP2506-V; and (C) acknowledges that LibreDigital or its Distributors/Agents will not charge, collect or remit QST on sales of eBooks made on Publisher’s behalf hereunder to end-users located outside Quebec on the assumption that the end-users are not resident in Quebec and not registered for QST purposes such that the sales are zero-rated for QST purposes.

(ii) If Publisher is not registered for QST, Publisher (A) certifies that Publisher is not resident in Quebec and does not have a permanent establishment in Quebec; and (B) acknowledges that LibreDigital or its Distributors/Agents will charge, collect and remit QST on sales of eBooks hereunder to end-users in Quebec made on Publisher’s behalf.

(c) PST. Publisher acknowledges and agrees that LibreDigital or its Distributors/Agents will charge, collect and remit any applicable PST on sales of eBooks made on Publisher’s behalf hereunder to end-users in Canada.

(d) In the event that LibreDigital or its Distributors/Agents collects any amounts corresponding to the purchase price for any of Publisher’s eBooks before Publisher has provided LibreDigital with any tax documentation required under Section 4 of this Agreement, LibreDigital will not remit those amounts to Publisher, but LibreDigital or its Distributors/Agents will hold those amounts in trust for Publisher, until such time as Publisher has provided LibreDigital with the required tax documentation. Upon receipt of all required tax documents from Publisher, LibreDigital will remit to Publisher any amounts held in trust by LibreDigital or its Distributors/Agents for Publisher, without interest, under this Section 4(d).

(e) If a purchase is subject to withholding or similar tax, or any sales, use, goods and services, value added, or other tax or levy not agreed to be collected by LibreDigital or its Distributors/Agents hereunder, or any other tax or other government levy of whatever nature, the full amount of that tax or levy shall be solely for Publisher’s account, and shall not reduce the commission to which LibreDigital is entitled.

(f) LibreDigital or its Distributors/Agents may withhold any taxes, duties, charges or levies on payments by LibreDigital to Publisher required by applicable law, rule or regulation, and LibreDigital or its Distributors/Agents shall remit any such withholding to the appropriate tax authority.

(g) Publisher shall indemnify and hold LibreDigital harmless against any and all claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest thereon.

5. The following pricing terms, set forth in Canadian Dollars, shall govern with respect to sales under this Addendum:


For (i) hardcover New Release titles with List Prices of $42.00 or less and (ii) non-hardcover New Release titles, Publisher may designate a Customer Price from among the following tiers for the corresponding eBook:

Publisher List Price (CAD$)

Maximum Customer Price (CAD$)

$0.01 - $24.00

$11.99

$24.01 - $27.00

$13.99

$27.01 - $30.00

$14.99

$30.01 - $32.00

$15.99

$32.01 - $33.50

$16.99

$33.51 - $37.00

$17.99

$37.01 - $42.00

$20.99

“Maximum Customer Price” means the highest permitted Customer Price for the range of List Prices in a given tier above, provided that Publisher can set a lower Customer Price in its discretion. “List Price” means Publisher’s suggested retail price for the corresponding physical book.

For all mass market or trade paperback editions of adult fiction or nonfiction books consisting primarily of text for reading with a List Price of $24.00 or less, the Customer Price for the corresponding eBook shall be no greater than $11.99 during the first twelve (12) months after the generally available commercial publication of the applicable title in such format.

For all other eBooks (i.e., except as set forth above), Publisher may select any Customer Price at its discretion, provided that all Customer Prices must be realistic in order for LibreDigital and its Distributors/Agents to be able to operate an efficient marketplace.

All prices set by Publisher hereunder for any eBooks must be in dollar increments that end in “--.99,” except if Publisher sets the price for a particular eBook at $0 (i.e., free).

By clicking “I Agree”, you are confirming that you have read and agree to these terms.

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