Terms of Service
This website is operated by Without Books®. Throughout the site, the terms “we”, “us” and “our” refer to Without Books®. Without Books® offers this website, including all information, tools and services available from this site to you, the “user”, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our site and/or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.
Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.
Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell products and services to you.
SECTION 1 - ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services. Please be advised that you may be liable for damages (including costs and attorneys’ fees).
SECTION 2 - GENERAL CONDITIONS
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information is not necessarily current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.
SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice.
We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.
We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
SECTION 5 - PRODUCTS OR SERVICES (if applicable)
Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Return Policy.
SECTION 7 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
SECTION 8 - THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
SECTION 9 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, including but not limited to artwork, audio, blog posts, podcasts, reviews, photographs, videos, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
In order to protect our employees' privacy, we will remove any content that mention an employee by name or uses other personal identifiers.
Please note that content uploaded or comments by users to Without Books’ Instagram page, or any of our Social Media pages, do not necessarily reflect or represent the opinions of Without Books, nor does Without Books endorse or confirm the accuracy of any opinions expressed.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e‑mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 10 - PERSONAL INFORMATION
SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 12 - TRADEMARKS
We reserve the right to remove any content that allegedly infringes another party’s trademark or service mark. We will terminate, in appropriate circumstances, any users who are repeat infringers of another party’s trademark or service mark. Notices regarding any alleged trademark infringement should be directed to Without Books via email, please submit a form on the following page:
Notification of Alleged Trademark Infringement: If any Person believes in good faith that its registered trademark or service mark has been used on our website in a way that constitutes trademark infringement under applicable law, such Person or its agent (each, a “Trademark Claimant”) may provide us with a written notice containing the following:
- Trademark Claimant’s name, address, telephone number, and email address;
- The registration number of the trademark or service mark, jurisdiction(s) of registration, and categories of goods and/or services covered by such registration;
- A description of where on the Website the allegedly infringing Website Content or Seller Content may be found, sufficient for Without Books to locate the material (e.g., the URL);
- A statement that Trademark Claimant has a good faith belief that the use of the registered trademark or service mark is not authorized by the trademark owner, registrant, or licensee or their respective agents, or applicable law;
- A statement by Trademark Claimant under penalty of perjury under applicable law that the information in its notice is accurate and that Trademark Claimant is the trademark owner, registrant, or licensee or authorized to act on behalf of the trademark owner, registrant, or licensee; and
- Trademark Claimant’s electronic or physical signature.
No Appeal to Restore Seller Content Removed for Alleged Trademark Infringement: If we remove any Seller Content because of a trademark infringement report, the applicable Seller will receive a notification from Without Books that includes the name and email address of the rights-holder who made the report and/or the details of the report. If the Content Seller believes the Seller Content should not have been removed, Content Seller or its agent can follow up with the rights-holder directly to try to resolve the issue. Without Books does not provide a counter-notice or appeal mechanisms for claims of trademark infringement and disclaims any liability for claims a Content Seller might make regarding mistaken or misidentified trademark infringement notice and takedown requests.
SECTION 13 - COPYRIGHT AND FAIR USE
Without Books is a publishing, rather than a file sharing platform, so copyrighted materials are often used in commentary, journalism, or the transformation of the material into something original of their own. As such, it’s important to consider if the manner in which the material is used falls under fair use, before submitting a DMCA notice. Under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing is liable for:
…any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Please note that withoutbooks.com may seek to collect those damages. This includes DMCA notices aimed at uses of copyrighted content that we believe to be fair. Additionally, you are required to give consideration to whether a use of material is fair before submitting a takedown notification, as a result of the decision in Lenz v. Universal.
What is fair use?
There aren’t hard and fast rules when it comes to defining fair use. However, the Copyright Act sets out four factors for courts to consider:
- The purpose and character of the use: Why and how is the material used? Using content for criticism, comment, news reporting, teaching, scholarship or research is usually fair. Additionally, using material in a transformative manner, that is to say, in a manner that adds new expression, meaning, or insight, is also more likely to be considered fair use over an exact reproduction of a work. What’s more, nonprofit use is favored over commercial use.
- The nature of the copyrighted work: Is the original factual or fiction, published or unpublished? Factual and published works are less protected, so its use is more likely to be considered fair.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much of the material is used? If the “heart” (the most memorable or significant portion) or the majority of a work wasn’t used, it’s more likely to be considered fair.
- The effect of the use upon the potential market for, or value of, the copyrighted work: Does the use target a different market/audience? If so, it’s more likely to be fair use. It’s important to note that although criticism or parody may reduce a market, it still may be fair because of its transformative nature. In other words, if the criticism of a product influences people to stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
Here are some resources to learn more about fair use:
- gov – Fair Use
- EFF – The Bloggers’ FAQ on Intellectual Property
- Stanford University Libraries – Fair Use
- Nolo – The ‘Fair Use’ Rule: When Use of Copyrighted Material is Acceptable
SECTION 14 - DMCA NOTICE AND PROCESS
If you believe that material available on Without Books infringes on your copyright(s), please notify us by providing a Digital Millennium Copyright Act (DMCA) notice.
Upon receipt of a valid and complete notice, we will remove the material and make a good faith attempt to contact the user who uploaded the material by email. Learn more about our process below.
Without Books is a platform where users often use copyrighted materials in commentary or journalism, or transform the materials into something original of their own. As such, before submitting a DMCA notice, it’s important to consider if the manner in which the material is used falls under fair use. If you are not sure whether material located Without Books infringes your copyright, or if it is subject to fair use protections, you should first consider seeking legal advice.
Please be advised that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material or activity is infringing.
Your DMCA notice will be forwarded to the party that made the material available, and also may be sent to third parties such as LumenDatabase.org. In addition, you are required to consider the possible fair use implications, as a result of Lenz v. Universal. We reserve the right to challenge abuses of the DMCA process, and your use of this form does not waive that right.
As required by the DMCA, we have a policy to terminate users that we consider to be repeat infringers. Although we won’t share the specifics of our repeat infringer policy, we believe that it strikes the right balance of protecting the rights of copyright owners as well as protecting legitimate users from wrongful termination. Please note that notices that are successfully countered, rejected on fair use grounds, or deemed to be fraudulent are not counted against a user or site.
Send your complaint to our designated agent, please submit a form on the following page:
Submissions will receive an email with instructions. Your response email must provide the following:
- A physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- An identification of the copyrighted work claimed to have been infringed;
- A description of the nature and exact location of the material that you claim to infringe your copyright, in sufficient detail to permit Without Books to find and positively identify that material. For example we require a link to the specific blog post (not just the name of the blog) that contains the material and a description of which specific portion of the blog post – an image, a link, the text, etc. your complaint refers to;
- Your name, address, telephone number and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The process begins when a copyright holder (or someone acting on their behalf) submits a Digital Millennium Copyright Act (DMCA) takedown notice to us, claiming that their content is published on Without Books without their permission.
They can submit a DMCA takedown notice via email or printed letter. After that, here’s what happens:
- We review the notice.
- If the notice is complete and valid, we remove the content.
- We notify the user and reply to the copyright holder to let them know we’ve taken action.
- We add a strike to the user if they don’t counter the notice.
- If the user believes they have rights to use the content or that the notice was submitted incorrectly, we review and process their counter notice.
- We restore the content if the copyright holder doesn’t take further legal action within 10 business days.
Step 1 - We review the takedown notice: When we first receive a DMCA takedown notice regarding a site, we review it to confirm that all of the required elements are present. Because the DMCA is law, we cannot accept a notice that’s missing any of the pieces outlined here.
In addition to reviewing notices for completeness, we also assess their validity. Although we respect copyrights, we also support everyone’s right to use content within the boundaries afforded by the law. Specifically, we reject notices that appear to be fraudulent or where the content identified:
- Isn’t copyrightable (for example, a person’s name).
- Is content that the complaining party may not own the copyright for (for example, the subject of a photo isn’t necessarily the copyright owner of the photo).
- Is fair use of copyrighted content.
Step 2 - We remove the content: If we receive a complete and valid DMCA takedown notice, we remove the content from the site and replace it with a DMCA removal message. For example, if we receive a DMCA takedown notice for an image within a post, we’ll replace only that image with a placeholder and insert text at the bottom of the post; the rest of the post and site will be unaffected.
Step 3 - We notify the user and reply to the copyright holder: Whenever we remove content from the site in response to a DMCA takedown notice we email the user and provide a copy of the original complaint. We also notify the copyright holder to let them know that the allegedly infringing content has been removed.
If the user wants to republish the post, they can edit the post to remove the specific content at issue. (This is only an option when only a portion of a post was identified as infringing.) After making the changes, the user must reply to our message to request removal of the DMCA takedown message.
Users cannot, under any circumstances, republish the allegedly infringing content. Republishing content that was removed after receipt of a valid DMCA takedown notice could result in the user being permanently suspended from Without Books. If the counter notice procedure is followed, we’ll restore the content at the appropriate time.
Step 4 - We add a strike: We’re required by the DMCA to have a repeat infringer policy, so if a user doesn’t counter a complete and valid DMCA takedown notice, we add a strike to their account.
We assess strikes after 10 business days, so that no one is suspended before they have a chance to review the issue and submit a valid counter notice.
Step 5 - We review and process the counter notice: Sometimes a user will disagree with the DMCA takedown notice, believing that they are lawfully using the content. We encourage users to submit a counter notice if this is the case. After reviewing the counter notice for completeness, we reply to the user and notify the copyright holder, providing them with a copy.
Step 6 - We restore the content: In spite of the counter notice, the user cannot republish the content because the copyright holder then has 10 business days to initiate legal proceedings against the user to prevent them from using their content on Without Books. If at the end of the 10 business days, the copyright holder hasn’t initiated legal proceedings, the DMCA requires us to restore the content.
SECTION 15 - ADVERTISERS
Our website may contain advertising and sponsorship by third-party users. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the website is accurate and complies with applicable laws. We will not be responsible for the illegality of or any error or inaccuracy in advertisers’ or sponsors’ materials or for the acts or omissions of advertisers and sponsors.
SECTION 16 - PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 17 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
In no case shall Without Books, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
SECTION 18 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless Without Books and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 19 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
SECTION 20 - TERMINATION
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
SECTION 21 - ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 22 - GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of United States.
SECTION 23 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
Terms of Service - Affiliate Program
Without Books offers an affiliate program (the “Affiliate Program”) to provide financial appreciation for authors and to help connect writers with readers through our service. By registering for the Affiliate Program, each eligible Person (each, an “Affiliate”) agrees to these Terms and Conditions of the Affiliate Program, as may be amended from time to time (“Affiliate Terms”), which incorporate by reference our Terms of Service (“Terms of Service”, “Terms”). These Affiliate Terms are supplementary to the Terms of Service, but in the event of a conflict, the terms of these Affiliate Terms shall prevail with respect the subject matter hereof. Capitalized terms used herein but not otherwise defined shall have the respective meanings assigned to such terms in the Terms of Service.
ISBNs (International Standard Book Number) submitted for consideration to the Affiliate Program must be available through our distributor Ingram Content Group.
Affiliates are identified by the Without Books Affiliate Author badge, which is added to applicable book pages on our website.
SECTION 24 - ELIGIBILITY FOR AFFILIATE PROGRAM
To register as and maintain status as an Affiliate, an Affiliate must (i) be an author of at least one book bearing an International Standard Book Number (“ISBN”), (ii) accepted by us and (iii) not be under any obligation or commitment, whether contractual or otherwise, inconsistent with its obligations under these Affiliate Terms. Without Books reserves the right to refuse or terminate any applicant or registrant for failure to meet such eligibility requirements at any time. If requests for documentation are not responded to in a timely manner, Without Books reserves the right to terminate, deactivate, or deny an existing or applicant Affiliate.
SECTION 25 - ENROLLMENT IN AFFILIATE PROGRAM
In order to become an Affiliate, an eligible author must provide a completed W9 form and provide the ISBN for the books that the person authored and desires for participating in Affiliate Program. Affiliate will only receive payments for the books that Affiliate has provided ISBN and has authored. Affiliate must be the registered author for the ISBN associated with the book. Affiliates will be paid for each enrolled book (“Shared Revenue”) only for the sales starting on the date that all of the followings are complete: 1. This contract is signed; 2. ISBN is provided; and 3. Completed W-9 form is received by Without Books. Accordingly, any sales that are dated prior to the signed contract date or received W-9 or ISBN are not qualified for the Affiliate Program. For the avoidance of doubt, all other terms applicable to users as set forth in the Terms of Service shall apply.
In case there are multiple authors for certain book, only the authors properly enrolled in Affiliate Program will be paid Shared Revenue. Allocation of the Shared Revenue may be directed by the agreement among all of the co-authors of the book. Such allocation instruction must be signed by all of the co-authors, and each of the authors who allocated Shared Revenue must be enrolled in Affiliate Program. If no such agreement or instruction is properly signed and submitted, the allocation of the Shared Revenue among the co-authors will be made pursuant to the default allocation listed in the Section 26.B below. The Affiliate Program is a not a royalty program. Accordingly, Shared Revenue allocation is not related to or inferred from any prior or current profit or royalty division agreement or similar agreements or arrangements.
SECTION 26 - SHARED REVENUE PAYMENT
In consideration for participating in the Affiliate Program, Without Books will pay the Affiliate(s) Shared Revenue. Shared Revenue is twenty percent (20%) of “Base Revenue” generated by such Affiliate(s) through the Affiliate(s)’s participation in the Affiliate Program. Base Revenue is calculated from the “Gross Revenue”[i] of the book sales minus sales tax, wholesale costs of book, discounts, shipping handling paid to wholesaler, and returns; but without any deductions for our costs incurred in the sale, advertising, promotion, distribution, shipping, storage, and other transportation of such products.
B. MULTIPLE AUTHORED BOOKS
If there is more than one author for the book, the Shared Revenue will be allocated to each of the participating Affiliate co-authors by the agreement signed and submitted by all of the participating Affiliate authors of the book pursuant to the Section 25 above. If there is no such agreement submitted, the Shared Revenue received by each of the participating Affiliate co-authors will be divided by the total number of authors, whether Affiliate or non-participating, on the book. In any case, Without Books pays only to the participating Affiliates. Accordingly, in some cases, the total payout for an ISBN may less than twenty percent (20%) of the Base Revenue[ii].
C. PAY PERIOD
The first pay period is January 1st to June 30th and the second pay period is July 1st to December 31st. Shared Revenues Payment to Affiliates with be postmarked within 30 days after the pay period ends. For purposes hereof, Gross Revenue will be tracked over a 6 month period and paid to the Affiliate less applicable taxes but without any deductions for costs incurred in the sale, advertising, promotion, distribution, shipping, storage, and other transportation of such products.
D. PAYMENT METHOD
Without Books does not make any representation or warranty to any Affiliate regarding the amount of shared revenues, if any, that may be realized hereunder or guarantee any minimum amount or shared revenues. Without Books will remit Shared Revenues to each Affiliate by issuing a check made payable to the applicable Affiliate. An Affiliate’s Account must contain accurate and up-to-date payment information, and Without Books shall not be held liable for its inability to remit such funds as a result of incomplete payment information. If funds cannot be settled into an Affiliate’s account after the period of time set forth by its state, country, or other government authority in its unclaimed property laws, we may process the funds due to such Affiliate in accordance with our legal obligations, including by submitting those funds to the appropriate government authority as required by applicable law. Each Affiliate will pay all taxes for which it is responsible under any applicable law or regulation when such taxes are due.
SECTION 27 - AFFILIATE MARKETING MATERIALS
Each Affiliate may from time to time receive from Without Books various approved communications materials to promote traffic to our services and sales of Merchandise on the Website, including, but not limited to, unique “tagged” and formatted URL (“Affiliate Materials”). Affiliates may choose to use the Affiliate Materials in their sole discretion. No Affiliate may edit, modify, or alter Affiliate Materials or the contents thereof without the written approval of Without Books.
SECTION 28 - LICENSE FOR COMMERCIAL USE OF THE AFFILIATE MATERIALS
The License granted to Users in the Terms of Service shall expressly permit each Affiliate to use the Affiliate Materials, including all Trademarks contained therein, for commercial purposes solely in connection with its participation in the Affiliate Program and promotion of the Website and sales thereon but for no other purposes.
SECTION 29 - MARKETING
Each Affiliate shall bear its own costs and expenses related to its participation in the Affiliate Program and the marketing and promoting of the Website. Without Books is not obligated to reimburse or credit any Affiliate for any marketing expenses. If Without Books does reimburse an Affiliate for any marketing expenses, such reimbursement shall not create a duty or obligation to reimburse any future marketing expenses.
SECTION 30 - INDEMNIFICATION
Affiliates and Without Books (each, an “Indemnifying Party”) shall indemnify, defend and hold harmless the other and their respective officers, directors, employees, contractors, representatives, successors and assigns (collectively, the “Indemnified Party”) from and against any liabilities, claims, costs, damages, demands, causes of action, proceedings or other actions, reasonable settlements, and expenses (including, without limitation, reasonable outside attorneys’ fees and court costs), whether at law or in equity, brought or asserted by a third party against any Indemnified Party (each, a “Claim”) arising out of, related to, or based upon any allegation that the Indemnifying Party’s intellectual property infringes or constitutes misappropriation of any patent, copyright, trade secret, trademark or other right of a third party.
The Indemnified Party shall (i) promptly notify the Indemnifying Party in writing of any such Claim (a delay in such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such delay prejudices the defense of such Claim) and give the Indemnifying Party the opportunity to defend or settle any such Claim at the Indemnifying Party’s sole cost and expense and (ii) cooperate with the Indemnifying Party, at the Indemnifying Party’s sole cost and expense, in defending or settling such Claim. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder and shall employ counsel reasonably acceptable to the Indemnified Party to defend any such Claim asserted against the Indemnified Party; provided, the Indemnifying Party may not settle any Claim in a manner that adversely affects any Indemnified Party without such Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed). The Indemnified Party shall have the right to participate in the defense of any Claim at its sole cost and expense.
In addition to the foregoing, if any of the Indemnifying Party’s intellectual property become the subject of a Claim of infringement or misappropriation, then the Indemnifying Party’s shall, at its expense and each Indemnifying Party’s option: (a) procure the rights in the infringing item or service; (b) replace or modify such service, product or item so that it becomes non-infringing or no longer misappropriates in such a manner that does not degrade functionality or disrupt Indemnified Party’s business; or (c) adequately compensate Indemnified Party’s for the infringing services, product or item whose value is diminished as a result of such infringement.
SECTION 31 - LIMITATION ON AFFILIATE MATERIALS AND WEBSITE USE
In addition to the limitations on use of Without Books’ Services and the Website as set forth in the Terms of Service, an Affiliate may not:
- Knowingly and intentionally communicate or distribute information in connection with the Affiliate Program that is defamatory, profane, infringing, obscene, unlawful, offensive, and/or harmful, including, but not limited to, content that advocates, endorses, condones, or promotes racism, bigotry, hatred, or physical harm of any kind against any individual or group of individuals, or that provides materials or access to materials that exploit people under the age of eighteen (18) in an abusive, violent, or sexual manner;
- Knowingly and intentionally communicate or distribute information in connection with the Affiliate Program that contains material that violates the intellectual property rights (or rights of privacy or publicity) of any third-party Person or for which the Platform Affiliate has not obtained the necessary rights or permissions to use accordingly;
- Knowingly and intentionally engaging in any marketing activity that may harm the reputation or credibility of Without Books;
- Imply that any Person other than the Affiliate is the sender of any marketing communications related to the promotion of the Marketplace;
- Knowingly and intentionally engaging in any marketing or promotional activities that violate applicable laws, rules, or regulations, including sending any email in violation of the federal CAN-SPAM Act of 2003;
- Forward pyramid schemes or chain letters;
- Knowingly impersonate another Affiliate or User or knowingly allow any other Person to use your identification;
- Knowingly and intentionally restrict or inhibit any other Affiliate from participating in
- the Affiliate Program; or
- Cause or induce any Person to engage in the restricted activities above.
SECTION 32 - CONFIDENTIALITY
For purposes of this Agreement, “Confidential Information” means any non-public or proprietary information or material of either Without Books or an Affiliate or their respective present and future parent, subsidiary, and affiliate companies or any of their respective present and future officers, directors, stockholders, members, managers, partners, employees, contractors, affiliates, content partners, vendors, third-party licensors, distributors, advertisers, other contracting parties, agents, representatives, successors, and permitted assigns (collectively, “Representatives,” and together with such party, the “Disclosing Party”) disclosed to, received by, or obtained from any source or Person and in any form by the other Party or its Representatives (together, the “Receiving Party”) or pursuant to or as a result of Affiliate’s participation in the Affiliate Program, which should by its nature reasonably be known to be confidential, whether or not marked as confidential. Without limiting the foregoing, a Disclosing Party’s Confidential Information includes, whether or not designated, all trade secrets, technical and non-technical data, processes, business practices, intellectual property, plans or proposals, financial information, information relating to actual or potential customers or suppliers or employees or other personnel, personally identifiable information (however such term or similar term is defined under applicable law), sales and marketing information, training and operations materials, and pricing and other financial information relating to the business or affairs of the Disclosing Party or its affiliates. Confidential Information does not include information that (i) is or becomes public knowledge through no act, omission or breach of this Agreement by the Receiving Party; (ii) is received by the Receiving Party from a third party not known by the Receiving Party to be under a duty of confidence to the Disclosing Party; or (iii) is already rightfully known without confidentiality restriction or is independently developed by the Receiving Party without use of Confidential Information. The Receiving Party will not, without the prior written consent of the Disclosing Party, disclose or use the Confidential Information for its own purposes except as expressly permitted by, or required to achieve the purposes of, these Affiliate Terms. Each Receiving Party will take all reasonable precautions to protect Confidential Information directly disclosed to it by the Disclosing Party, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information.
Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required (y) to its Representatives with a need to know in connection with these Affiliate Terms or Affiliate’s participation in the Affiliate Program and who are bound by non-disclosure terms substantially similar hereto or (z) by operation of law or order of a court or governmental agency, or if necessary in any proceeding to establish rights or obligations hereunder, with reasonable prior written notice to the Disclosing Party (unless legally prohibited) sufficient to permit the Disclosing Party an opportunity to contest or limit the nature of such disclosure at its sole cost and expense. Upon request of the Disclosing Party, the Receiving Party shall return or destroy (and, upon request, certify to the destruction of) all Disclosing Party’s Confidential Information in the possession or under the control of the Receiving Party, except to the extent subject to a continuing license, and all copies of such Confidential Information.
Without Books and each Affiliate acknowledge that monetary damages would not be a sufficient remedy for any breach of the confidentiality provisions contained herein and, consequently, if a Receiving Party breaches or threatens to breach such provisions, the applicable Disclosing Party will have the right to equitable relief, including injunctive relief or specific performance or both, from a court of competent jurisdiction without posting bond, in addition to any other remedies to which such Disclosing Party may be entitled at law, in equity, or under these Affiliate Terms or the Terms of Service. Notwithstanding anything in either these Affiliate Terms or the Terms of Service to the contrary, any breach of the confidentiality provisions contained herein shall not be subject to the limitation of liability set forth in the Terms of Service.
SECTION 33 - TERMINATION
Notwithstanding anything in either these Affiliate Terms or the Terms of Service to the contrary and in addition to all other remedies available under these Affiliate Terms, either Without Books or an Affiliate may terminate such Affiliate’s participation in the Affiliate Program at any time, for any reason or no reason, with or without cause. Upon termination, (i) all earned but unpaid Shared Revenues due and owing to the Affiliate as of the effective date of termination shall be accelerated and shall become due and payable within thirty (30) days thereof unless such Affiliate is in breach of the terms hereof, in which case Without Books may withhold any such accrued Shared Revenues until such time as such breach is cured; (ii) all rights granted or licensed hereunder or under the Terms of Service shall immediately terminate and revert the grantor or licensor; and (iii) Without Books and the Affiliate shall immediately discontinue any and all representations or statements from which it might be inferred that any relationship exists between Without Books and such Affiliates, including use of the Affiliate Materials.
SECTION 34 - RELATIONSHIP BETWEEN AFFILIATES AND WITHOUT BOOKS
These Affiliate Terms shall not be deemed or construed in any manner as creating any employment, partnership, joint venture, employment, agency, fiduciary, or other similar relationship. No party is a representative or agent of the other or shall so hold itself out publicly or to any third party or incur any liability for the other party.
SECTION 35 - ACCEPTANCE OF AFFILIATE TERMS; CHANGES TO AFFILIATE TERMS
By registering for and participating in the Affiliate Program, each Affiliate is deemed to have accepted these Affiliate Terms. Without Books may change or amend these Affiliate Terms at any time upon notice to each Affiliate. The observance of any provision of these Affiliate Terms may be waived (either generally or in any particular instance, retroactively or prospectively) only with the written consent of the waiving party. Any party’s failure to enforce its rights under these Affiliate Terms at any time for any period will not be construed as a waiver of such rights.
Without Books and each Affiliate agree that all agreements, notices, disclosures, and other communications provided electronically satisfy any legal requirement that such communications be in writing.
[i] For the purpose hereof, “Gross Revenue” shall mean all gross receipts derived and actually received by, or irrevocably credited to and redeemed by, Without Books from its sales made to Users on or through our service.
[ii] For example, if there are four authors of one book, twenty percent (20%) of the Base Revenue will be divided by number of authors (4). Each participating Affiliate co-author will receive five percent 5% of the Base Revenue (20% divided by 4).
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