Updated: August 1, 2012
Please read these terms of service carefully. They are important.
Purple Papaya LLC, a California Limited Liability Company (“we” or “us”) offers a digital epublishing and distribution service (“ePublishing”) through which persons holding the rights to publish content in digital form (a “Content Provider” or “you”) contract with us to format their digital content into appropriate e-reader files (“eBooks”) and to distribute the eBooks through retailers with whom we have publishing agreements (“Retailers”) (ePublishing and the Marketplace are referred to together as the “Service”). This Agreement is made as part of an online application (the “Application”) for participation in the Service and is a binding agreement between Purple Papaya LLC and you, the entity or individual identified as the Content Provider in the Application, with respect to your use of the Service. If the Content Provider is an entity, the person who accepts this Agreement for the Content Provider represents and warrants that he or she is entitled to enter this Agreement as an authorized representative of the Content Provider and to bind the Content Provider to the terms of this Agreement.
1. Agreement Acceptance. Please read this Agreement carefully before accessing or using the Service. By (a) clicking “agree” or “accept” where given the option to do so or (b) accessing or using any part of the Website or Service, you agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access the Website or use the Service. These terms and conditions are considered an offer by Purple Papaya LLC, and acceptance is expressly limited to these terms.
2. Agreement Amendments. The Service will evolve over time, and accordingly this Agreement may need to change over time. We reserve the right to change the terms of the Agreement at any time in our sole discretion. Changes to the terms of this Agreement will be effective on the date posted at the Website, unless we specify otherwise. You are responsible for checking the Website at https://easyepublish.com/Info/TermsOfUse.cshtml periodically for updates to these terms. We will also use reasonable efforts to notify you of any term changes by email at the address you used when you registered for your account. Your continued use of our Services after we post changes will constitute your acceptance of these changes. If you do not agree to the changes, you must withdraw your eBooks from distribution and terminate your use of our Service.
3. Term and Termination. The term of this Agreement will begin upon your acceptance of it and will continue until terminated by us or by you. We are entitled to terminate this Agreement, in whole or with respect to a specific eBook, and your access to the Service at any time without advance notice to you. We will notify you within five business days of our decision to terminate in whole or in part. You are entitled to terminate your use of our Service at any time by providing notice in accordance with our current procedures for account termination. Within five business days after termination by you or by us, we will notify any Retailers carrying the eBooks affected by the termination to remove them from sale. Most Retailers agree to do this within five (5) business days of receiving notice. Following termination of this Agreement with respect to any eBooks, we and the Retailers may continue to maintain digital copies of such eBooks to provide continuing access to or re-downloads of your eBooks or otherwise to support customers who have purchased an eBook prior to termination of your account. All rights to eBooks acquired by customers will survive termination. All provisions of this Agreement that, by their nature, are intended to survive the termination of this Agreement will survive.
4.1 Account Eligibility. This Service is intended for use by adults. In order to use our Service you must be at least 18 years old or the legal age of majority in your place of residence.
4.3 Account Security. You are solely responsible for safeguarding and maintaining the confidentiality of your username and password and are responsible for all activities that occur under your account, whether or not you have authorized the activities. You may not permit any third party to use the Service through your account and you will not use the account of any third party. You agree to immediately notify Purple Papaya LLC of any unauthorized use of your username, password or account or any other breaches of security. We will not be liable for any acts or omissions by you, including any damages of any kind, incurred as a result of such acts or omissions.
5. eBook Distribution Rights
5.1 Grant of Rights, Exclusivity.
5.1.1 Grant of Rights. By submitting any content to us for distribution through the Service, you grant to us and all Retailers and their affiliates, throughout the term of this Agreement (subject to your withdrawal rights under Section 5.2.5), a nonexclusive, irrevocable, worldwide right and license to sell, display, promote and distribute your eBooks, directly and through third party distributors, in all digital formats for any electronic device platform (whether now existing or hereafter created or developed) and by all digital distribution means available. This right includes, without limitation, the right to: (a) convert or render eBooks, including without limitation any text, information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material contained therein, into a format suitable for sale, distribution, marketing, display and promotion of such eBooks hereunder; (b) reproduce and store eBooks on one or more computer facilities, including any Digital Locker as defined below; (c) index and catalogue the eBooks; (d) display, market transmit, distribute, sell and otherwise digitally make available all or any portion of eBooks for customers and prospective customers to download, access, share, email, copy and paste, print, annotate and/or view online and offline, including on portable devices; (e) bundle the eBooks with related physical content available for sale in a retail store; (f) permit customers to “store” eBooks that they have purchased on servers (“Virtual Storage”) and to access and re-download such books from Virtual Storage from time to time both during and after the term of this Agreement; (g) display and distribute (1) your trademarks and logos in the form in which you provide them to us or within eBooks (with such modifications as are necessary to optimize their viewing), and (2) portions of eBooks , in each case solely for the purposes of marketing, soliciting and selling eBooks and related offerings; (h) use, reproduce, adapt, modify, and distribute, as we or Retailers determine appropriate in our sole discretion, any metadata that you provide in connection with eBooks; (i) transmit, reproduce and otherwise use (or cause the reformatting, transmission, reproduction, and/or other use of) eBooks as mere technological incidents to and for the limited purpose of technically enabling the foregoing (e.g., caching to enable display); and (j) use the eBooks as otherwise provided herein. In addition, you agree that we may permit the independent contractors of us, our affiliates, Retailers, and their affiliates to exercise that rights that you grant to us in this Agreement. Your grant to us of the rights set forth in this section is on a worldwide basis; however, if we make available to you a procedure for indicating that you do not have worldwide distribution rights to an eBook, then the territory for the sale of that eBook will be those territories for which you indicate, through the procedure we provide to you, that you have distribution rights.
5.1.2 Rights Clearances and Dispute Resolution. With respect to all eBooks, you will be solely responsible for obtaining and paying for any and all necessary clearances and licenses for the eBooks to permit exercise of the rights granted hereunder by us and the Retailers without any further payment or obligation by us or the Retailers, including, without limitation, all royalties and other income due to any copyright owner.
5.2 Delivery, Formatting, Acceptance and Withdrawal.
5.2.1 Delivery. You will provide to us, at your own expense and in accordance with the SERVICE POLICIES, each eBook you would like to distribute through the Service in a format compatible for conversion as set forth in the SERVICE POLICIES. Any electronic or physical files you deliver to us will be retained by us and will not be returned to you. All eBooks delivered to us must be free of computer viruses, worms and any other potentially harmful or disrupting code, including any code that would alter or render the content unusable after a certain period of time.
5.2.2 Content Requirements. You must ensure that all eBook content is in compliance with our CONTENT POLICIES at the time you submit it to us. If you discover that content you have submitted does not comply, you must immediately withdraw the content by un-publishing it or re-publishing content that complies. We are entitled to remove or modify the metadata and product description you provide for your eBooks for any reason, including if we determine that it does not comply with our content requirements. We may also remove all or any part of your eBook’s cover art for any reason, including if we determine that it does not comply with our content requirements. You may not include in any eBook any advertisements or other content that is primarily intended to advertise or promote products or services. You must ensure that all metadata you provide to us for an eBook is current, complete and accurate. If you discover any metadata you have provided to us for an eBook is inaccurate or incomplete, you must promptly submit corrected metadata to us through the current procedures for updating your eBook.
5.2.3 Formatting. We will format the content of your eBook and convert it to the electronic file types required by the Retailers (“Conversion Files”) for distribution through the respective market channels. We will not make any material changes to the text of your eBooks, but you acknowledge that certain unintentional errors may occur in the process of formatting your eBooks. If any such errors do occur, you may withdraw the affected eBook from further sale and this will be your only remedy for such errors. We may also, in our discretion, correct any errors existing in an eBook file you deliver to us. We will make reasonable efforts to provide Retailers with eBooks in the format they need; however Retailers reserve the right to reformat eBooks, with no modifications to substance, if their needs change.
5.2.4 Rights to Conversion Files. You understand that we format your eBooks without separate charge to you and in anticipation of the royalties to which we are entitled under this Agreement, and that our formatting requires considerable time, skill and expense. Accordingly, you and we agree that while you will continue to have the intellectual property rights in the content of your eBooks, we retain the exclusive rights to the Conversion Files and these Conversion Files will not be returned to you nor will any rights to the Conversion Files be vested in you on termination of this Agreement or withdrawal of any eBook by you or by us. We may make a portion of the Conversion Files available to you for your review prior to publication. Except for this limited right to review, you have no rights to use, copy, sell, display, distribute or prepare derivative works of the Conversion Files.
5.2.5 eBook Withdrawal. You may withdraw from sale any eBook from the Service at any time on five business days advance notice by using the procedures for eBook withdrawal as listed on the Website. If you request that an eBook be withdrawn from sale, we will make commercially reasonable efforts to terminate the future sale of that eBook by Retailers by the fifth business day after you submit your request for withdrawal. You understand that both we and Retailers may continue to distribute said eBook to persons who purchased the eBook prior to the date five business days after withdrawal.
5.2.6 eBook Rejection. We are entitled to determine what content we accept and distribute through our Service at our sole discretion. Retailers are also entitled to determine the content they accept and distribute through their service at their sole discretion. If we request that you provide additional information relating to your eBooks, such as information confirming that you have all rights required to permit our distribution of your eBooks, you will promptly provide the information requested and you represent and warrant that any information and documentation you provide to us in response to such a request will be current, complete and accurate. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the eBooks and the accuracy of the information or documentation you provide to us with respect to those rights.
5.3 Agreements with Retailers. You acknowledge that we will distribute the eBooks through Retailers, and that your grant of rights to us and the Retailers under Section 5.1 explicitly includes the right to publish your eBooks through the Retailers. A current list of Retailers is available at https://easyepublish.com. You understand that you are not a party to or third party beneficiary of the agreements between us and the Retailers and that we have the sole right and obligation to enforce the terms of such agreements. You agree that we will be relying on your representations and warranties in this Agreement in submitting your eBooks for publication by the Retailers.
6. Marketing and Promotion
6.1 Marketing. We and the Retailers will have sole discretion in determining all marketing and promotion activities related to the sale of your eBooks through the Service and you agree that we and the Retailers may use (and allow our contractors and agents to use) the cover of your eBooks, as well as reasonable excerpts, in any and all marketing, promotional or packaging materials for any software, website or device through which your eBooks are made available or accessible, directly and through multiple channels of distribution, in any media now known or later developed, without further need or permission from you, and without further royalties or payments to you. We and the Retailers may make each eBook available for online sale and downloads in one or more formats. Prior to general commercial distribution, we and the Retailers may distribute or cause to be distributed free of charge to some employees of Purple Papaya LLC or the Retailers copies of each eBook in any format for purposes of testing the electronic distribution of such eBooks in such format. The Retailers reserve the right to distribute and display via download all front matter of an eBook and a portion of an eBook’s content (nonexclusive of front matter) free as a sampler. You will not be owed any fees for any marketing or promotional efforts. YOU ACKNOWLEDGE THAT NEITHER PURPLE PAPAYA LLC NOR THE RETAILERS HAS ANY OBLIGATION TO COMMIT ANY MINIMUM LEVEL OF RESOURCES TO OR TO PERFORM ANY SPECIFIC ACTIVITIES WITH RESEPCT TO THE MARKETING, DISTRIBUTION OR PROMOTION OF ANY eBOOK OR PART THEREOF, OR TO CONTINUE MARKETING, DISTRIBUTING OR PROMOTING AN eBOOK AFTER WE OR THEY HAVE COMMENCED DOING SO. PURPLE PAPAYA LLC AND THE RETAILERS RETAIN THE RIGHT TO TERMINATE THE DISTRIBUTION OF ANY eBOOK AT ANY TIME.
6.2 Retailer Lending and In-Store Programs.
6.2.1 Enrollment in Lending and In-Store Programs. Some Retailers conduct programs that permit (a) purchasers of an ebook to lend their ebook to another user/device for a certain period and (b) the Retailer to make the entire content of an ebook available over the Wifi of a physical store, in each case without further payment due from the end user to the Retailer or from the Retailer to the Content Provider. Of these Retailers, some require participation in these programs as part of their agreement, while others give the choice to opt-out of the program (at a lowered royalty rate), although the Retailer agreements generally provide that if an ebook participates in a lending program at one Retailer, the other Retailers reserve the right to enroll the ebook in their lending program with no additional compensation. To ensure the highest possible royalties for your eBooks, we will enroll all of your eBooks in all Retailer lending and in-store programs. We will owe you no royalties with respect to ebooks that are loaned or made available through in-store programs nor will we be obligated to provide you notice of or data regarding lending.
6.2.2 Retailer Lending Program Details: Amazon. Amazon requires Content Providers to agree that it may allow customers to loan ebooks to others or, in certain cases, to opt out of lending and receive a lower royalty (opt out not available for all ebooks) . Each ebook may be lent once for up to fourteen (14) days and will not be readable by the lender during the loan period. Lending is not available for Kindle books purchased on Amazon.co.uk, Amazon.de, Amazon.fr, Amazon.es or Amazon.it. Amazon may modify this program from time to time at its discretion.
6.2.3 Retailer Lending Program Details: Barnes & Noble. Barnes & Noble requires Content Providers to agree that it may allow customers to loan ebooks to others. A customer who has purchased an ebook may loan that ebook to one (1) lendee during a lending period. No more than one (1) copy of one (1) eBook can be on loan from an ebook lender at any given time. The lending period is for up to fourteen (14) days. Barnes & Noble may modify this program from time to time at its discretion.
6.2.4 Barnes & Noble In-Store Privileges. Barnes & Noble requires Content Providers to agree that one hundred percent (100%) of every ebook can be viewed via Wifi within a physical Barnes & Noble store and within reach of such store’s Wifi. Barnes & Noble may modify this program from time to time at its discretion.
6.3 Digital Locker. You acknowledge that customers who purchase your eBooks from Retailers can store copies of your eBooks in a Digital Locker provided by the Retailers. A “Digital Locker” means the storage of digital content, including eBooks, purchased by a customer that is associated with the customer’s account with such Retailer. The Digital Locker allows for content management activity that includes, but is not limited to, downloading files, synching with customer devices and storing customer annotations to the eBook. Customer’s access to eBooks stored in his or her Digital Locker may survive any suspension or termination of this Agreement.
6.4. Optional Programs and Services. Any optional programs and services offered by Retailers will be added to the end of this Agreement.
7.1 List Price. You will provide a list price in U.S. Dollars (the “List Price”)for each eBook you submit to us in accordance with the Pricing Guidelines - FAQ (“List Price”). The List Price you provide must be within the minimum and maximum allowable List Prices as shown in the Pricing Guidelines and will be exclusive of value-added or similar taxes which are payable with respect to the purchase price of a product (“VAT”). Retailers who display a digital list price to customers may add applicable VAT to the List Price you provide to determine the digital list price displayed. If your eBook is offered for sale in a currency (the “Sale Currency”) other than U.S. Dollars, we or the Retailers may convert the List Price to the Sale Currency at an exchange rate we or they determine and periodically update the converted List Price in order to reflect current exchange rates. If your List Price is converted to another Sale Currency, the converted List Price in the Sale Currency will be your List Price with respect to the offer and sale of your eBook in the Sale Currency for all purposes under this Agreement (for example, your Royalties will be calculated based on the converted List Price in the Sale Currency.) If the converted List Price would be outside the minimum or maximum List Price as determined by the Pricing Guidelines, we or the Retailers have the right to adjust your List Price so that it equal to the applicable minimum or maximum List Price for that Sale Currency. We conform our minimum and maximum List Prices to the pricing requirements of all Retailers. You will adjust your List Price in accordance with the Pricing Guidelines as required to ensure that, at all times that the eBook is subject to this Agreement, the List Price meets the requirements provided in the Pricing Guidelines. Any increase in List Price you provide to us will be effective within 5 business days following the date on which you submit it. We may provide other requirements for List Prices in the Pricing Guidelines which your eBooks must meet in order to be eligible for the Service, in addition to the requirements provided on the Pricing Guidelines.
7.2 Customer Prices. The Retailers have the sole and complete discretion to set the actual retail price at which your eBooks are sold to the customer. Royalties owed by Retailers to us and by us to you will be calculated based on List Prices. The Retailers are solely responsible for any interactions with the respective customers, including processing payments, payment collection, requests for refunds and related customer service, and will have sole ownership and control of all data obtained from customers and prospective customers in connection with the sale of eBooks.
8.1 Royalties. If you are not in breach of your obligations under this Agreement, for each eBook sold to an end user through the service, Purple Papaya will pay you the applicable royalty set forth at easyePublish.com, net of refunds, bad debt, any applicable taxes charged to a customer or applied with respect to sales to a customer (including without limitation any VAT or sales tax) and our fee for managing the sale of your eBook through the Service (the “Management Fee”) as set forth at https://easyepublish.com/Info/FAQ.cshtml (a “Royalty” or the “Royalties”). If your List Price for an eBook is higher than permitted by us or at any Retailer, we or that Retailer will be entitled to deem it modified so that it is equal to the maximum List Price permitted when calculating Royalties.
9.2 Payment Terms. We will pay Royalties on eBook sales within fourteen (14) business days of the end of every calendar month based on payments received from the Retailers during such month. Retailer royalty payment schedules can vary from sixty (60) days following the calendar month of sale to quarterly. At the time of payment, we will make available to you an online report detailing sales of eBooks and corresponding Royalties. All payments will be made via Electronic Funds Transfer (“EFT”) payments or other methods we designate in the Program Policies, in the Sale Currency or other payment currency we provide for in the Program Policies. If we give you the option to change your payment currency and you select that option using our then-current procedures, the change will be effective on the first day of the calendar month following the calendar month in which you make the change (unless we make an earlier period available). If we pay you in a currency other than the Sale Currency, we will convert the Royalties due from the Sale Currency to the payment currency at an exchange rate we determine, which will be inclusive of all fees and charges for the conversion. We may require you to register in your Program account a valid bank account for receiving EFT payments that is in compliance with the then-current Program Policies, in which case we will not be obligated to make payments of Royalties to you unless you do so. We are entitled to accrue and withhold payments until the total amount due is at least $10 by EFT or at least those amounts set forth in the Program Policies. You may not maintain any action or proceeding against us in respect of any statement unless you commence that action or suit within six (6) months after the date the statement is rendered. Any such action or proceeding shall be limited to a determination of the amount of monies, if any, payable by us to you for the accounting periods in question, and your sole remedy will be the recovery of those monies without interest. We can withhold, offset or reduce Royalties as follows:
(i) If we pay you a Royalty on a sale that is later issued as a refund, return, or credit for such sale, we may offset the amount of the Royalty previously paid for the sale against future Royalties, or require you to remit that amount to us. Negative balances can occur when the value of all refunds of a Content Provider’s eBooks during a given payment period exceeds that value of all orders for that Content Provider’s eBooks. If you have a negative balance on your payment date that exceeds $10, you will be notified and have fifteen (15) days to make a payment to us or your account may be closed.
(ii) If a third party asserts that you did not have all rights required to make one of your eBooks available through the Service, we may hold all Royalties due to you until we reasonably determine the validity of the third party claim. If we determine that you did not have all of those rights or that you have otherwise breached your representation and warranties in our Content Guidelines with regard to an eBook, we will not owe you Royalties for that eBook and we may offset any of those Royalties that were previous paid against future Royalties, or require you to remit them to us.
(iii) If we terminate this Agreement in whole or in part because you have breached your representations and warranties or our Content Guidelines, you forfeit all Royalties not yet paid to you with respect to the eBooks subject to the termination.
(iv) Upon termination of this Agreement, we may withhold all Royalties due for a period of three months from the date they would otherwise be payable in order to ensure our ability to off-set any refunds or other offsets we or the Retailers are entitled to take against the Royalties.
(v) If, after we have terminated your account, you open a new account without our express permission, we will not owe you any Royalties through the new account.
(v) Our exercise of these rights does not limit any other rights we may have to withhold or offset Royalties or to exercise other remedies.
9.3 Taxes. In the event that the sale or delivery of any eBook to any end user is subject to any sales, use, goods and services, value added or similar tax under applicable law, we or the Retailers, as applicable, will collect such tax and remit it to the taxing authorities. You are responsible for any income and other taxes due and payable resulting from payments to you by us under this agreement. Accordingly, unless otherwise stated, the amounts due to you hereunder are inclusive of any taxes that may apply to such payments. We maintain the right, however, to deduct or withhold any and all applicable taxes from amounts due to you by Retailers, and the amounts so paid, as reduced by such deductions or withholdings, will constitute full payment and settlement to you.
10 DRM and Geofiltering Technology. We may, but are not obligated, to provide you the option to apply Digital Rights Management (“DRM”) technology in connection with the distribution of your eBooks. If we provide you the option to apply DRM technology, it will be done at the Retailer level. If we provide you the option to apply DRM technology, you acknowledge that neither we nor the Retailers make any representations as to the efficacy of the DRM and neither we nor the Retailers will be responsible for any failure of the DRM. We also may, but are not obligated, to allow Retailers to use geofiltering technology as a way of determining which customers are entitled to purchase eBooks, for example where you indicate that you do not have worldwide distribution rights to an eBook through the procedure we provide to you for that purpose. If Retailers use geofiltering technology when distributing your eBooks, distribution will be deemed to have taken place within the permitted distribution territories for the eBooks, even though customers may, in fact, be located outside those territories.
11. Representations, Warranties and Indemnities. You represent and warrant that: (a) you hold the necessary rights, including all intellectual property rights, in and to the eBook and related content to enter into this Agreement and grant the rights herein and such rights are not subject to any prior agreement, lien or encumbrance that may interfere with the free exercise of rights granted hereunder; (b) your grant of rights to us under Section 5.1 with respect to any eBook for which you intend to use the Service will not conflict with any other agreement known to you; (c) the eBook does not contain any obscene or libelous material or material that is in any way unlawful; (d) the use, with reasonable care and skill, of any instruction, material or advice contained in the eBook is not likely to result in injury and the eBook includes appropriate warnings and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice; (e) the eBook may be sold, marketed, displayed, distributed and promoted as contemplated by this Agreement without violating or infringing on the rights of any other person or entity, including, without limitation, infringing on any copyright, patent, trademark or right of privacy, or any other intellectual or industrial property right, title or interest of any party, and our exercise of our rights under this Agreement will not obligate us to pay any fees to third parties in connection with the use of the eBook in the manner contemplated by this Agreement.; (f) the metadata provided by you hereunder shall be accurate and current; and (g) you will be solely responsible for accounting and paying any co-owners or co-administrators of any eBook or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable hereunder. To the fullest extent permitted by applicable law, you will indemnify, defend and hold Purple Papaya LLC and its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action or expense (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in the Agreement. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.
12. Ownership of Service/Feedback. Subject to the authorizations you grant to us under this Agreement and our rights to the Conversion Files, as between us and you, you retain all ownership rights in and to the copyrights of the content of your eBooks. We retain all ownership rights in and to the copyrights and all other rights and interests in and to the Website, the Service and all other property of Purple Papaya used in operating the Website or providing the Service. We are solely responsible for, and will have full discretion with respect to the terms, features and operation of the Service and related marketing, but our use of the eBooks will be subject to the terms of this Agreement. In the event that you elect to provide suggestions, ideas or other feedback to us or to any of our affiliates in connection with the Service, we and our affiliates will be free to use and exploit the same in any manner without restriction and without any need to compensate you. This Agreement does not grant you any license or other rights to any intellectual property or technology owned or operated by us or any of our affiliates, including, without limitation, any trademarks or trade names. Nothing in this Agreement restricts any rights we may have under applicable law or a separate permission.
14. Confidentiality. “Purple Papaya Confidential Information” means: (a) any information that would reasonably be considered to be confidential information of Purple Papaya in light of the circumstances surrounding the disclosure; and (b) any other confidential information provided by Purple Papaya to Content Provider hereunder including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (i) trade secrets; (ii) financial information, including pricing; (iii) technical information, including research development, procedures, algorithms, data, designs and know-how; and (iv) business information, including operations, planning, marketing interests and products. Except with the prior written consent of Purple Papaya, you shall not (a) use or disclose any Purple Papaya Confidential Information other than to employees and contractors who have a need to know and any disclosure to contractors may only be to contractor who have signed a non-disclosure agreement to protect the confidential information of third parties; (b) make copies or allow others to make copies of such Purple Papaya Confidential Information except as is reasonably necessary for internal business purposes; or (c) issue any press release or make any other public disclosures regarding this Agreement or its terms. If Content Provider is required to disclose Purple Papaya Confidential Information to a third party in connection with any ongoing civil or criminal investigation, or any judicial or administrative proceeding, Content Provider will promptly notify Purple papaya so that it may, if it chooses, seek an appropriate protective order or take other appropriate steps to seek to limit or prevent such disclosure. In addition, nothing in this Agreement shall prohibit your use or disclosure of information (a) previous known to you without obligation of confidence, (b) independently develop by or for you without use of or access to the Purple Papaya Confidential Information; (c) acquired by you from a third party which is not under an obligation of confidence with respect to such information; or (iv) which is or becomes publicly available through no breach of this Agreement. Without limiting the survivability of any other provision of this Agreement this Section 14 will survive five (5) years following the termination of this Agreement.
15. Limitation of Liability. THIS SERVICE IS PROVIDED “AS IS.” WE WILL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL , INDIRECT, EXEMPLARY OR RELIANCE DAMAGES ARISING FROM OR IN RELTATION TO THIS AGREEMENT, OR FOR ANY EQUITABLE REMEDY OF DISGORGEMENT OR OTHERWISE, HOWEVER CAUSED AND REGARDLES OF THEORY OF LIABILITY. IN NO EVENT WILL OUR LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES DUE AND PAYABLE BY PURPLE PAPAYA LLC UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. WE SPECIFICALLY DISCLAIM, WITH RESPECT TO ALL SERVICES, SOFTWARE, CONTENT OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONECTION WITH THIS AGREEMENT, ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. AUTHOR ACKNOWLDES AND AGREES THAT PURPLE PAPAYA CANNOT ENSURE THAT DIGITAL BOOKS SUBMITTED BY OR ON BEHALF OF THE AUTHOR WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT CUSTOMERS WILL COMPLY WITH ANY CONTENT USAGE RULES ETAILERS MAY MAKE APPLICABLE IN CONNECTION WITH THE USE OF DIGITAL BOOKS AND PURPLE PAPAYA WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY SYSTEM OR PROCEDURE OR OF ANY CUSTOMER TO COMPLY WITH ANY CONTENT USAGE RULES. PURPLE PAYPAYA EPUBLISHING RELIES ON COMPLEX SYSTEMS AND PROCESSES. WE STRIVE TO MAKE OUR SYSTEMS AND PROCESSES ERROR-FREE AND EFFICIENT, BUT WE CANNOT GUARANTEE THAT THEY WILL BE, AND WE WILL HAVE NO LIABILITY ARISING FROM SYSTEM OR PROCESS FAILURES, INTERRUPTIONS, INACCURACIES, ERRORS OR LATENCIES.
16. Force Majeure. Purple Papaya LLC will not be liable to you for any failure or delay in the performance of its obligations hereunder caused by any circumstance beyond its control, including, but not limited to, denial-of-service attacks, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, and labor conditions.
17. Amendments to Agreement. We reserve the right to change the terms of this Agreement at any time in our sole discretion and without liability. We will give you notice of the changes by posting new terms at [web address] with a revision date indicated on the page or by sending an email to the mail address then registered for your account with us.
18. Miscellaneous. The Parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to create a partnership or joint venture between the Parties hereto. If any provision of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other except that (a) Purple Papaya may assign any of its rights and obligations under this Agreement without consent and (b) you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with the sale of all or substantially all of your assets, but you must give Purple Papaya written notice of the assignment no later than ten (10) business days following the assignment. Subject to the foregoing limitation, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. THIS AGREEMENT WILL BE GOVERENED ED BY THE LAWS OF THE STATE OF CALIFORNIA. YOU HEREBY IRREVOCABLY CONSENT TO AND WAIVE ANY OBJECTION TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED AT SAN MATEO COUNTY, CALIFORNIA WITH RESPECT TO ANY CLAIMS, SUITS OR PROCEEDINGS ARISING OUT OF OR IN CONENCTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not confer upon any other person other than the parties any rights or remedies. You consent to the use of electronic means to complete this Agreement and to provide you with any notices we give you in relation to this Agreement.