Terms of Service (Agreement):
This document constitutes the Digital and Print Distribution Agreement (“Agreement”) between you and CinnamonTeal Design and Publishing, referred to in this Agreement as “us,” “we,” and “CinnamonTeal”).
This Agreement contains the terms and conditions under which CinnamonTeal offers and provides certain book publishing, distribution, printing, promotional and other services (the “Services”) through the CinnamonTeal website (www.cinnamonteal.in) (the “Website”) or through other websites and services operated by or on behalf of CinnamonTeal and its licensees (as defined below). By indicating acceptance to this Agreement or by using or accessing the Services, including through the submission of materials (and the print, text, associated artwork and underlying works embodied therein) for distribution by CinnamonTeal (whether by upload to the Website or through the submission of physical embodiments of your material (and the print, text, associated artwork and underlying works embodied therein) (e.g., as Books or print publications) to CinnamonTeal, you agree to be bound by the terms and conditions described herein and all terms incorporated by reference.
BY SIGNING THIS AGREEMENT, YOU ENTER INTO A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS AN AUTHORIZED REPRESENTATIVE FOR AN AUTHOR, WRITER, PUBLISHER, OR CORPORATION, IN THE LATTER CASE “YOU” SHALL REFER TO THE AUTHOR, WRITER, PUBLISHER, OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND ARE AUTHORIZED TO ACT. THEREFORE, WE REQUEST YOU TO READ THIS AGREEMENT CAREFULLY AND CONSULT WITH THE APPROPRIATE PEOPLE AND ADVISORS BEFORE YOU ACCEPT THIS AGREEMENT.
CinnamonTeal reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and at its sole discretion, by posting a change notice or a new agreement on the Website. If any modification is unacceptable to You, your only recourse is to terminate your account and discontinue use of the Services. To terminate your Agreement, you must send a Termination Notice to [email protected]
(by copying [email protected]
) with your username and the email address associated with your account and include in the subject line of your e-mail “Termination of Agreement with CinnamonTeal.” Your continued use of the Services, following posting of a change notice or new agreement on the Website or otherwise sending you a notice, or Your failure to submit a Termination Notice within fifteen (15) days of the date we provide such notice, will be deemed as Your acceptance of the changes.
Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and CinnamonTeal that arose prior to the date of such modification.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH CinnamonTeal FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.
1. Certain Definitions:
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) “Work” means the manuscripts, artwork, images, text, descriptive material and other content that you have submitted to us in connection with the Services. Any Work you submit must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you. You alone will be held responsible if it is deemed that the Work is plagiarised or does not rightfully belong or to or that you do not have the necessary permissions to use it.
(b) “Books” means any form of book embodying the Work, including print books, audio books, ebooks and other digital and physical formats of any kind.
(c) “Book Information” means the digital information (otherwise called “metadata”) conveying information such as the title of the book, and other information related solely to the book
(d) “Licensee” means any third party licensee, such as Flipkart, Amazon, or others, that we may authorize or sublicense to carry out the marketing, distribution, printing and sale or other use or exploitation of the Work pursuant to the terms of this Agreement.
You hereby appoint us as an authorized representative for the sale and other distribution of the Work as described in this Agreement. Although you retain the right to sell the Work directly, you may not appoint any third parties to: (a) act as your authorized representative for distributing the Work to third party distributors, whether for online or physical redistribution (because online retailers such as Amazon, Flipkart, etc. will refuse content that may be delivered by multiple parties); or (b) distribute, publish or otherwise exploit the Work in any manner, including via ebooks and online or physical distribution. This authorization to act solely on your behalf will be for the duration of the agreement alone.
You hereby grant to us the exclusive (except for direct sales by you as set forth in this Agreement), sublicensable, right and license to reproduce, distribute, publish, publicly, perform, publicly display, and otherwise use and exploit the Work as necessary to carry out the Services you select during the Term and throughout the Territory, including the right to:
(a) Reproduce, format, reformat, digitize, and convert the Work into Books in any form or format. These formats will be decided by you;
(b) Distribute, publicly perform, publicly display and otherwise make available, for promotional purposes and without remuneration to You, portions of the Work (“Samples”) in any form of media, including but not limited to digital media, printed media and audio, to promote the license, sale and distribution of Books;
(c) Promote, sell, sublicense, distribute, and deliver the Books and associated Book Information to purchasers and resellers who may use such Books and associated metadata in accordance with usage rules approved by us and pursuant to any limitations imposed by the distribution preferences you designate in your account (e.g., only sales of permanent digital or physical files);
(d) Use and authorize others to license the use of and sale of the Work in connection with all manner of book services, such as, but not limited to, sales or licenses of Books as permanent digital files, digital files made available via subscription services, digital files made available via library services, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices), to customers who have previously purchased a specific Book;
(e) Make available and authorize Licensees to make available the Books and related Work in all territories in which Licensees deliver, distribute, or sell books in any form or format, including audio books and ebooks;.
(f) Print, distribute, and sell, and authorize Licensees to print, distribute, and sell, the Books in any manner authorized in connection with the Services, including directly to you, through our Website, through distributors and retailers, through third-party and specialized websites and estores, through your BookShop page, and through other sales channels as determined by us;
(g) Allow and authorize others to allow limited sharing of Books between existing and potential customers for promotional purposes;
(h) Use and distribute Book Information as embodied in Books;
(i) Display and electronically fulfill and deliver Authorized Artwork used in connection with the Work for personal use, solely in conjunction with the applicable Books;
(j) Use the Authorized Content, Authorized Artwork, and Book Information as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(k) Make necessary changes to this agreement to comply with Licensees’ rules and regulations not mentioned above; and
Other than your right to make direct sales of the Work to end users and consumer, the rights granted under this Agreement are exclusive.
4. Term and Termination:
The term of this Agreement will commence when you first access or use the Services or otherwise accept this Agreement and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice (the “Term”), which notice, if sent by (a) CinnamonTeal, will be sent to you at the e-mail address you provided to CinnamonTeal and (b) you to CinnamonTeal, must be sent only to the following e-mail address: [email protected]
(by copying [email protected]
), with the following information: (i) your username; (ii) the e mail address associated with your Account; and (iii) “Termination of Agreement with CinnamonTeal” in the subject line of the email. Upon termination of your account, our team will begin working to remove your title (titles), but note that it may take 4-6 weeks or longer for the titles to be removed from retail outlets around the world. Until we are able to remove such title, the rights and licenses granted under this Agreement will continue to apply to such title. Sections 1, 2, 5, 7, 11, 12, 13,14, 15, 16, 17, 18, 19, 20, and 21 will survive any termination of this Agreement for any reason.
5. Payments to You:
(i) For Books distributed online through our third-party distribution partner network Licensees, we will remit to you an amount equal to one-hundred percent (100%) of the net price that we actually receive from such Licensees (after such Licensees have deducted their fees and any other applicable third party fees and costs) for the sale or other licensed uses of your Books, less any GST, bank surcharges or other out-of-pocket costs we may incur in connection with such transaction.
(ii) Following the sale of e-books on www.dogearsetc.com, we will pay you an amount equal to seventy five percent (75%) of the net price.
(b) Physical Books:
(i) Print On Demand Sales: For Books sold through our Print On Demand Services, we will (i) collect the amounts received for such sales, including amounts paid by third-party distributors, (ii) deduct all costs and pass through amounts relating to such sales, including all printing, binding, manufacturing, packaging, shipping, selling and distributions fees, and Sales Taxes, and (iii) remit to you the remaining balance from such sales (the “Net Sales Amount”). The actual amount you receive will depending on a variety of factors, such as international currency conversion rates, the manufacturing costs associated with production of your Books, and the fluctuation in third party distribution and other fees. The net amount deducted will be communicated to you in each case.
(ii) Sales on Dogears Etc.: In the event that authors elect to have their physical books sold via www.dogearsetc.com, we will pay you an amount equal to sixty percent (60%) of the retail price actually received from a customer for the sale net of any Sales Taxes (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction, if the book is sold to a customer residing in India, and an amount equal to fifty percent (50%) of the retail price actually received from a customer for the sale net of any Sales Taxes (as defined below) and similar taxes, surcharges or other out of pocket costs we may incur in connection with such transaction, if the book is sold to a customer residing outside India.
(c) Fees (due to sales) owed to CinnamonTeal by any person or entity with whom CinnamonTeal has entered into a contractual relationship that are not received or collected (e.g., as a result of charge backs, breach of contract, failure to pay, etc.) will not be remitted to the customer.
(d) To the extent that you owe any amounts to CinnamonTeal as a consequence of this agreement, CinnamonTeal shall have the right to deduct all or a portion of such amounts from any amounts otherwise then payable to you.
(e) In the event that CinnamonTeal overpays royalties, such as in cases when fraudulent or unauthorized purchases are charged back to CinnamonTeal after payments are made, then CinnamonTeal will deduct the funds owed from monies payable to you hereunder. If the amount owed exceeds your accrued monies, you agree to remit a payment back to CinnamonTeal within 20 days of notification to adjust the overpayment.
(f) In the event that CinnamonTeal receives notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with your warranties and representations, or in the event that CinnamonTeal has, in its reasonable business judgment, reason to suspect that your Account has been subjected to and/or involved in fraudulent activities, CinnamonTeal reserves the right to discontinue posting of monies to your Account and block your ability to otherwise withdraw funds there from, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by CinnamonTeal (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by CinnamonTeal from any monies otherwise payable to you hereunder. Certain of CinnamonTeal’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
(g) In the event that CinnamonTeal is presented with a claim of breach of copyright, failure to comply with any third party license requirement or other breach of any of your warranties hereunder, and in its reasonable business judgment is compelled to engage an attorney to respond to such claim, CinnamonTeal shall take recourse to all available means to recover from you all costs thereby associated, such as the associated legal fees, and other fees and penalties imposed on it.
(h) To the fullest extent permitted by law, CinnamonTeal and its Licensees reserve the rights to determine the applicable sales price and other fees payable in connection with the Books.
(i) All accounting details will be available and updated regularly in the secure members’ login area at https://www.cinnamonteal.in/login. We will make payments to you (by wire or electronic transfer) when the amounts credited to you exceed a threshold amount of Rs. 1,000/- (Indian Rupees One Thousand Only).
(j) Tax Information. CinnamonTeal will use its reasonable efforts to collect any applicable taxes owed on the sale of the Work, and to remit such or other similar taxes on your behalf to relevant government authorities. Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any taxes owed in connection with the sale or distribution of the Work pursuant to this Agreement, and you hereby indemnify CinnamonTeal for any taxes that may be owed in addition to those amounts collected and remitted on your behalf by CinnamonTeal.
6. Your Obligations Regarding Rights in Work:
Any Work you submit must be owned or controlled by you or you must have sufficient rights therein to submit the Work and grant the rights granted under this Agreement with respect to such Work, such that your submission and our exercise of the rights granted under this Agreement will not infringe upon or violate the rights or any third party. You or a licensee (on your behalf) will obtain and pay for any and all clearances or licenses required in the Territory (or any portion thereof) for the use of the Work and any related metadata as intended by this Agreement. Specifically, and without limiting the generality of the foregoing, you, or a licensee on your behalf, will be responsible for and shall pay (i) any royalties and other sums due to writers, authors, co-authors, artists, copyright owners and co-owners, publishers and any other publishing royalty participants from sales, distribution or other uses or exploitation of the Books, (ii) all payments that may be required under any collective bargaining agreements applicable to you or any third party, and (iii) any other royalties, fees and/or sums payable with respect to the Work, metadata or other materials provided by you to us.
7. Payments to CinnamonTeal:
In consideration of the Services rendered hereunder, you shall pay to CinnamonTeal the fees in effect at the time you request the particular Services, as set forth on the Website, or through communication by email, or in this Agreement, or as otherwise made available to you (the “CinnamonTeal Fees”). The CinnamonTeal Fees may be amended from time to time by CinnamonTeal in its sole discretion. If any amended CinnamonTeal Fees apply to you, CinnamonTeal will provide you notice of such amended CinnamonTeal Fees at least fifteen (15) days prior to the effective date of the amendment. Your continued use of the Services after such effective date constitutes your agreement to the amended CinnamonTeal Fees. If you do not agree to such amended CinnamonTeal Fees, your sole option is to terminate this Agreement in accordance with the termination procedures set forth in Section 5 above. The amended CinnamonTeal Fees will apply to all Services rendered after the effective date of such amendments. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your CinnamonTeal Account by you or anyone else using your Account. It is your responsibility to notify CinnamonTeal if your payment method has changed by making the appropriate changes to your CinnamonTeal Account settings. If you do not provide a valid payment method your Services may be disconnected or interrupted.
8. Right to Withdraw Material:
You have the right, at any time during the Term, to withdraw your permission for the sale or other uses of specified Book titles in your account, upon written notice to us (“Withdrawal”). Within 5 business days following our receipt of your notice of Withdrawal, we will use reasonable efforts to advise our Licensees that they are no longer authorized to offer the sale or other use of (the “Withdrawn Titles”). Please note, however, that it may take 4-6 weeks or longer for the titles to be removed from certain Licensees, especially foreign retailers, and that the rights and licenses granted under this Agreement will continue to apply to such title until we are able to remove such title. Sending of your notice of Withdrawal will not limit your responsibility for sales and other uses of the Work that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired the Work. CinnamonTeal is not responsible for, and has no liability for, any delays of our Licensees in removing the Work.
9. Names and Likenesses; Promotional Use and Opportunities:
(a) Names and Likenesses. You hereby grant to us, during the Term, the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning any writers, authors, artists, or publishers, as well as Book or publication name, in any marketing materials for the sale, promotion and advertising of the applicable Book, which is offered for sale or other use under the terms of this Agreement (e.g., an author, writer, publisher, or artist name and likeness may be used in an informational fashion, such as by textual displays or other informational passages, to identify and represent authorship and publishing credits of the applicable author, writer, or artist in connection with the exploitation of applicable Book).
(b) Promotion. You hereby grant to us and our Licensees the right to market, promote and advertise the Books as available for purchase or license, as we and they determine in our and their discretion.
Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, you own all right, title and interest in and to (i) the Work , (ii) the Books, (iii) the Samples, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you.
11. Monitoring of Your Content; Removal of Content from Website:
(a) Monitoring: CinnamonTeal does not control or have the right to control the Work and does not have any obligation to monitor the Work for any purpose. CinnamonTeal may choose, in its sole discretion, to monitor, review or otherwise access some or all of the Work, but by doing so CinnamonTeal assumes no responsibility for the Work, no obligation to modify or remove any inappropriate elements of the Work, or to monitor, review or otherwise access any other author’s content or artwork.
(b) Right of Removal: CinnamonTeal reserves the right, to remove and not use or exploit any of the Work from the Website in its sole and absolute discretion, for any reason or for no reason, including if CinnamonTeal believes such content: (i) is offensive, harmful. pornographic, obscene, defamatory unlawful, indecent, inflammatory, false, misleading, fraudulent or otherwise objectionable; (ii) is the subject of a dispute between you or us and a third party; (iii) is content to which you cannot document your rights therein upon CinnamonTeal’s request; (iv) violates or is alleged to violate the intellectual property rights, privacy rights or other rights or protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in CinnamonTeal’s sole and absolute judgment is necessary to protect the business interests of CinnamonTeal and any of its business partners or Licensees. Our partners, retailers and Licensees may reject content for any reason (including but not limited to racist or sexual content, hyperlinks, SEO spam, Public Domain material or infringing/offensive/prohibited images or content). CinnamonTeal’s service has been rendered once we have edited, formatted and delivered the content, and if your content is rejected by any partner for any reason, CinnamonTeal will have no liability to you, and CinnamonTeal will not offer any refund or credit for any services (including but not limited to editing, conversion, formatting, cover design, and distribution). CinnamonTeal may also remove the Work from the Website if you are abusive or rude or provide false or intentionally misleading information to any CinnamonTeal employees or agents. CinnamonTeal shall have no liability to you for the removal of any of the Work from the Website or any Licensee website or service. The removal of any of the Work shall not relieve CinnamonTeal of the obligation to pay you any royalties that may have accrued prior to the removal of the Work.
(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by CinnamonTeal’s removal of the Work from the Website or Licensee’s websites or services. In order for you to terminate this Agreement following the removal of any of the Work, you must send CinnamonTeal a notice of Termination.
12. Account Information; Disclosures:
(a) Your Account Information. In order to access some features of the Website, including your account information and periodic statements, you will have to create an online account (“Account”). You hereby represent and warrant that the information you provide to CinnamonTeal upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up to-date at all times during the Term of this Agreement.
(b) Password. As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify CinnamonTeal by e-mail to address: [email protected]
(by copying [email protected]
). You will be solely responsible for the losses incurred by CinnamonTeal and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying CinnamonTeal that your Account has been compromised.
13. Prohibited Use of the Website and Licensee Websites and Services:
(a) You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage CinnamonTeal, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or the Work, do or attempt any of the following:
(b) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended;
(c) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload the Work to the Website;
(d) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;
(e) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties;
(f) Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortuous, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
(g) Create a false identity or impersonate another for the purpose of misleading others as to your identify, including, but not limited to, providing misleading information to any feedback system employed by CinnamonTeal;
(h) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;
(i) Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;
(j) Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in the Work; or
(k) Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
14. Availability of Services:
The Services are provided on an “as is,” “as available” basis, and CinnamonTeal may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and CinnamonTeal makes no commitment to update any aspect of the Website. CinnamonTeal makes no representations and warranties with respect to availability or performance of the Website and may discontinue the Services at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of the Work uploaded to the Website or otherwise delivered to CinnamonTeal as physical product.
15. Additional Representations and Warranties of the Parties:
(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:
(i) is authorized to enter into this Agreement on the terms and conditions set forth herein.
(ii) will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.
(iii) shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
(b) Representations and Warranties by You. You represent and warrant to CinnamonTeal that:
(i) You represent and warrant that you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to the Work k, and metadata. For the avoidance of doubt, if you are acting on behalf of an author, writer, publisher, or corporation, you hereby represent and warrant to CinnamonTeal that you are fully authorized to enter into this Agreement on behalf of such author, writer, publisher, or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.
(ii) You represent and warrant that you own or control the necessary rights in order to make the grant of rights, licenses and permissions herein, that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Work, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Work) as contemplated by this Agreement. Furthermore, you represent that the exercise of such rights, licenses and permissions by us and our Licensees shall not violate or infringe the rights of any third party.
(iii) You represent and warrant that the Work does not plagiarize or pirate any other work or infringe upon or violate any copyright, trademark, trade secret or other proprietary right.
(iv) You represent and warrant that the Work does not contain SEO keyword spam, either in your manuscript or your metadata tags.
(v) You represent and warrant that the Work does not contain multiple hyperlinks to advertisements or affiliate marketing pages.
(vi) You represent and warrant that the Work does not contain any advertisements of content that is primarily intended to advertise or promote products of services.
(vii) You represent and warrant that the Work does not violate any right of privacy that is libelous or violate any personal right or other right of any kind of any person or entity.
(viii) You represent and warrant that the Work does not violate state and federal laws or advocate illegal activities.
(ix) You represent and warrant that the Work does not advocate hateful, discriminatory or racist views or actions toward others.
(x) You represent and warrant that any and all instruction, material, or advice contained in the Work is not likely to result in injury and the Work includes appropriate warning and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice, and that the Work shall not contain any errors or omissions in any recipe, formula, design, or instruction which, if followed, might harm the user.
(xi) You represent and warrant that the Work is not a public domain work (unless you are the true author) and is not sourced or copied, either in part or in entirety, from commercial services, articles, or information sources which have been licensed to others.
(xii) You and we represent and warrant that we will not act in any manner which conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by you or us will interfere with our performance of our obligations under this Agreement.
(xiii) Each party represents and warrants that it shall perform its obligations hereunder in full compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.
(xiv) We make no guarantees whatsoever about there being any minimum sales or uses of any Books.
16. No Representations and Warranties With Respect to Sales and Distributions:
CinnamonTeal makes no guarantees regarding the minimum number of unit sales or uses of the Work or regarding any revenue to be earned under this Agreement. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with CinnamonTeal for the sale, distribution or licensed use of the Work, including by paying the royalties they owe us for the distribution of the Work.
(a) Indemnification. You hereby indemnify, and hold us harmless from any and all damages, claims, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims”) arising out of or connected with any claim, demand, or action which arises out of any breach or alleged breach or violation of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding noninfringement of any copyrights or any other rights in and to any other forms of intellectual property. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Pending the determination of any claim, demand, or action, we may, at our discretion, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this paragraph.
(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit or require you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by CinnamonTeal or imposes any conditions or obligations on CinnamonTeal other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe CinnamonTeal an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
18. Copyright and Intellectual Property Infringements:
Notice and procedure for making claims of copyright or other intellectual property infringements.
(a) CinnamonTeal respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or the CinnamonTeal Service.
(b) CinnamonTeal’s intellectual property policy is to (1) remove material that CinnamonTeal believes in good faith, upon notice from an intellectual property owner or their agent, infringes the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by “repeat infringers.” CinnamonTeal considers a “repeat infringer” to be any user that has uploaded Products or Submissions to the Service even after one or more notification. CinnamonTeal has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon CinnamonTeal’s own determination.
(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or the CinnamonTeal Service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please email us at this email address: [email protected]
(by copying [email protected]
) using your username and the email address associated with your account, and provide all relevant details, including an identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit CinnamonTeal to locate the material.
(a) THE WEBSITE, THE SERVICES, AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CINNAMONTEAL AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND RELATING TO THE SERVICES, THE WEBSITE OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CINNAMONTEAL OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. CINNAMONTEAL AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY CINNAMONTEAL, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER THE Work VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
20. Limitation of Liability; Basis of the Bargain:
(a) CINNAMONTEAL SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. CINNAMONTEAL SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY CINNAMONTEAL OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF THE Work, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH CINNAMONTEAL OR OTHERWISE. CINNAMONTEAL’S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY CINNAMONTEAL FOR THE DISTRIBUTION OR LICENSING OF THE Work DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST CINNAMONTEAL.
(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND CINNAMONTEAL, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CINNAMONTEAL, CINNAMONTEAL’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT CINNAMONTEAL WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
21. General Provisions:
(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent parties. This Agreement shall not be deemed to create an agency, partnership or joint venture, and neither party is the other’s agent, partner, or employee.
(b) Entire Agreement. This Agreement contains the entire understanding of the parties relating to the subject matter hereof. This Agreement supersedes all previous agreements or arrangements between us pertaining to the digital distribution of content, provided that if you previously entered into a digital distribution agreement with us in the past, and elected any options, those options will remain in place under this Agreement. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. 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) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
(d) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by you upon registration with the CinnamonTeal Site, or as properly updated, or, in the absence of a valid electronic mail address, via any other method CinnamonTeal may elect in its sole discretion, including, but not limited to, via posting on the Website.
(e) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of Goa, India, applicable to agreements entered into and to be wholly performed in Goa, without regard to conflict of laws principles.
(f) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
(g) Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto 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.
(i) Assignment. CinnamonTeal may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining CinnamonTeal’s prior written consent.