1. Services.
Bublish, Inc. (Bublish, Company) agrees to undertake and the delivery of purchased Services for individuals or entities (the Client) as defined in this Author Services Agreement (Services/Agreement) in accordance with the following terms:
2. Ownership; Rights; Proprietary Information.
The author shall retain all rights relating to his or her work of authorship.As protection for Proprietary Information, Company will hold in confidence and not disclose, except in performing the Services, or use of any Proprietary Information. Accepting this Author Services Agreement does not obligate Distribution with Company nor is Company obliged to Distribute a book that it has worked on as part of an Author Services Agreement. Distribution is a separate Service with a separate Agreement and Terms.
3. Warranty.
Company warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Company may have to others; (ii) all work under this Agreement shall be original work and none of the Services or any development, use, production, distribution, or exploitation thereof will infringe, misappropriate, or violate any intellectual property or others person’s or entity’s rights; (iii) Company shall comply to the best of its ability with all applicable laws in the course of performing the Services. Client warrants that all Content provided by them for Services (i) are not libelous, defamatory, obscene, (ii) do not infringe on the copyright of any other person or entity; (iii) and do not or shall not contain any viruses, Trojan horses, trap doors, worms or any other malicious computer programming routines that might cause damage to a computer system; (iv) do not and shall not contain any disabling devices or code which could be capable of preventing any business partner’s or end user’s use of Content; (v) do not otherwise violate any applicable laws, rules, ordinances or regulations; (vi) do not and shall not contain any recipes, formulae or instructions that, if implemented, might be injurious to users. The Client warrants that it will provide accurate information related to the Content. The Client herein accepts sole and absolute liability for any inaccurate representation or warranty as stated above. In no event shall Bublish be liable for Client’s failure of or any breach of its obligations hereunder. Additionally, and without limitation, the Client represents and warrants that it is responsible for its Content and will hold Bublish harmless for any claims brought against it in conjunction with the Client’s Content.
4. Warranty Disclaimer.
ALL SERVICES AND PRODUCTS (IF ANY) PROVIDED BY BUBLISH UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS-IS” BASIS AND BUBLISH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BUBLISH DOES NOT WARRANT THAT THE SERVICES OR PRODUCTS (IF ANY) PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE. BUBLISH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY AND SYSTEM INTEGRATION, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BUBLISH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PRODUCTS (IF ANY), OR THE PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. BUBLISH MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE MAINTENANCE OF ANY RELATIONSHIP WITH ANY BUSINESS PARTNER OR SELLER.
5. Termination.
This Agreement will commence on the Date of Purchase and continue until the Services have been completed in accordance with the terms of this Agreement. If either party breaches a material provision of this Agreement, the other party may terminate this Agreement upon seven (7) days written notice unless the breach is cured within the notice period. Either Party may terminate this Agreement with such written notice if the other Party (i) is in material breach of its obligations hereunder and fails to cure such breach within (7) days following written notice of such breach, or (ii) becomes insolvent or files, or has files against it, a petition under bankruptcy or insolvency law which remains undismissed after (60) days, makes an assignment for the benefit of creditors or takes any similar Action under applicable bankruptcy or insolvency law. Additionally, Bublish may terminate or suspend Services immediately, without actual cause, upon reasonable belief of inaccurate or improper account information, any act of fraud, embezzlement, theft, copyright infringement, breach of any material provision, or any other violation of law by Client or Client’s employees, agents, or designees. In the event that Company terminates or suspends Services, the Agreement shall remain effective between Company and the Client and fees paid for all work completed to date will be retained by the Company. Company also has the right to keep partial or full payment for partially completed work at its discretion.
6. Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Agreement, each party shall be and act independently and not as a partner, joint venture, or agent of the other and shall not bind nor attempt to bind the other to any additional contracts without consent. This includes book Distribution, which requires a separate Agreement.
7. Payment.
Work on Services begins after payment has been made and the transaction is marked as settled in Company’s systems.
8. Indemnification.
Client shall indemnify, defend, and hold harmless Bublish and its affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a Bublish Indemnitee) from and against any and all Losses incurred by such Bublish Indemnitee resulting from any Action by a third party to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from: (a) Client Data, including any processing of Client Data by or on behalf of Bublish in accordance with this Agreement; (b) any other materials or information (including documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including Bublish’s compliance with any specifications or directions provided by or on behalf of Client or any third party acting on behalf of or through Client; (c) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (d) any Action not permitted under this Agreement; (e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client or any third party acting on behalf of or through Client, in connection with this Agreement. Client hereby grants to Bublish, the authority to withhold Services until any Action has been fully and completely resolved. This section shall survive any expiration or termination of this Agreement.
9. Limitation of Liability.
Neither Party’s liability for death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors or for fraudulent misrepresentation is excluded or limited by this Agreement. Other than that as set out above, neither Party shall be liable (whether for breach of contract, negligence or for any other reason) for any; (i) loss of profits; (ii) loss of sales; (iii) loss of revenue; (iv) loss or waste of management or staff time, or interruption to business; (v) indirect, consequential or special loss; even if the Parties have been advised of the possibility of such losses. Company’s total liability under this Agreement shall not exceed the sum of Five Hundred Dollars ($500). The Parties hereby acknowledge that the mutual covenants and agreements set forth in this Agreement reflect this allocation of risk.
10. Miscellaneous Provisions.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the state of South Carolina without regard to the conflicts of law provisions thereof. Any legal Action or proceeding relating to this Agreement shall be brought exclusively to relevant courts and each party consents to the jurisdiction thereof. In any Action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.
a) Notices. Any notice provided or permitted to be given, made, or accepted by either Party to the other pursuant to this Agreement must be in writing and given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, or (iv) by electronic mail. Such notices shall be delivered to Company using the addresses provided below:
Attn: General Counsel
75 Port City Landing
Suite 110
Mount Pleasant, SC 29464
info@bublish.com
All notices will be effective on the date of delivery.
b) Assignment. Client may not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder or any portion thereof without prior written approval of Bublish. This Agreement will be binding on and inure to the benefit of Client and Bublish and their respective permitted successors and assigns.
c) Use of Third Parties. Client hereby consents to Bublish’s use of third parties in furtherance of providing services to Client of or related to this Agreement, which may include, without limitation, third party customer service providers or third-party content conversion providers, at Bublish’s sole discretion.
d) Force Majeure. Any delay or failure of a Party to perform its obligations under this Agreement (excluding obligations to make payment of money due) shall be excused if and to the extent that such delay or failure is caused by an event beyond the reasonable control of the non-performing party, including without limitation, any act of God, pandemic, epidemic, actions by any government authority, fires, floods, natural disasters, riots, wars, terrorism, vandalism, labor problems (including lockouts, strikes, and slowdowns), failure of or interruptions in telecommunications or data transmission systems, or the inability to obtain materials, labor, equipment or transportation.
e) Survival. Those sections, as well as any other provision that, in order to give proper effect to its intent, should survive the termination or expiration of this Agreement.
f) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
g) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the validity or enforceability of any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
h) Status. Except to the extent that this Agreement expressly provides otherwise, nothing in this Agreement shall or is intended to create a partnership or joint venture between the Parties, constitute one Party as agent of the other or give either Party authority to make or enter into commitments, assume liabilities, or pledge credit on behalf of the other Party. Neither Party may act as if it were or represent (expressly or by implying it) that it is, an agent of the other or has such authority. Each Party confirms that, in entering into and performing this agreement, it is acting as principal and not as the agent of any undisclosed third-party principal. A person who is not a Party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
i) Entire Agreement. This Agreement supersedes and replaces all previous versions of this agreement or any other agreement between some or all of the parties concerning the Bublish Services. Each Party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Agreement between the parties with respect to the subject matter herein and supersedes all prior proposals, understandings, and all other agreements, oral and written. This Agreement may not be modified or altered except by a written instrument duly executed by the Parties.
j) Acceptance/Counterparts. By accepting the Terms of Service per this Agreement, Client represents and warrants that it has the legal right, power and authority to enter into this Agreement and hereby agrees to be bound by the terms contained herein. Client acknowledges that by checking the box labeled, “I have read and agree to all terms and conditions.” Constitutes acceptance of all Terms of Service and sections of this Agreement.