THIS GOOGLE EDITIONS ADDENDUM (the "Addendum") is entered into by and between you and Google Inc., Google Ireland Limited and all of their affiliates (Google Inc. and Google Ireland Limited and their affiliates are collectively referred to herein as "Google") and is effective as of the date you click the "Accept and Agree" button below (the "Addendum Effective Date"). If you are accepting this Addendum on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to this Addendum, (ii) that you have read and understand this Addendum, and (iii) that you agree, on behalf of the party that you represent, to this Addendum. If you do not have the legal authority to bind, please do not click the "Accept and Agree" button below.
WHEREAS, you and Google previously entered into an agreement (the "Agreement") where you provided to Google certain books to be included in Google Books (as defined below);
WHEREAS, this Addendum is an addendum to the Agreement which is hereby incorporated by reference; and
WHEREAS, you now wish to modify that Agreement, subject to the terms contained herein and the program policies currently located at http://books.google.com/support/partner/bin/answer.py?answer=166501 (as may be updated from time to time by Google) (the "Program Policies")), such that end users may purchase the ability to access the full text (among other things) of books that you elect to include in this Addendum.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, you and Google agree as follows:
1. Definitions. For purposes of this Addendum, the capitalized terms used, but not defined herein, shall have the same meanings set forth in the Agreement. The following terms have the meanings set forth below:
1.1 "Authorized End User" means an End User who has registered and has a Google account, and his or her heirs, if any.
1.2 "Authorized Reseller" means an entity that enters into a separate agreement with Google to resell Google Editions.
1.3 "Bundled Price" is defined in Section 3.2.
1.4 "Default Price" is defined in Section 3.1.
1.5 "E-Reader Device" means a dedicated electronic reading system. The term "E-Reader Device" does not include general purpose devices that support access to the internet through a browser.
1.6 "End User" means an end user who accesses or uses Google Services.
1.7 "Google Books" means that Google Service where End Users can search the text of books and other print content and view portions of, and in some cases all of such content, whatever such program(s) may be called by Google from time to time.
1.8 "Google Editions" means digital copies of the Authorized Works selected by you in the Publisher Account to make accessible to end users under this Addendum.
1.9 "Google Editions Content" means the Authorized Content of the Authorized Works selected by you in the Publisher Account to make accessible to end users under this Addendum.
1.10 "Google Services" means Google's products and services that are accessible through and otherwise provided by various computer and electronic technologies, networks (syndicated and otherwise) and systems, including without limitation, mobile wireless services and Internet-based services accessible through the Google Sites and any Google syndication partner sites.
1.11 "Google Site" means any web site located at a Google-owned domain, including all subdomains and directories thereof, and all successor sites thereto.
1.12 "Licensed Territories" means the territories designated by you in the Publisher Account.
1.13 "List Price" means (a) the Specified Price or the Default Price, as applicable, when Google Editions are sold individually or (b) the Bundled Price when Google Editions are sold with a print version of the book, and in each of (a) and (b) excluding all taxes, including any value added tax and sales tax.
1.14 "Publisher Account" means the Google account held by you relating to your participation in Google Books.
1.15 "Purchased Content" means Google Editions Content that an end user has purchased.
1.16 "Reseller Revenue Split" is forty five percent (45%) of the List Price (subject to Sections 4.4 (Exceptions) and 4.5 (Fraud)).
1.17 "Specified Price" is defined in Section 3.1.
1.18 "Standard Revenue Split" is fifty-two percent (52%) of the List Price (subject to Sections 4.4 (Exceptions) and 4.5 (Fraud)).
2. Sale of Authorized Content.
2.1 Authorizations. Subject to all the terms and conditions herein, you hereby request and authorize Google to:
(a) promote, market and sell Google Editions Content in the Licensed Territories to end users through Google Services and through Authorized Resellers as further described in Section 2.6 (Authorized Resellers);
(b) display, distribute, and make copies of Google Editions Content, including through caching, through Google Services and third party websites worldwide to allow Authorized End Users the perpetual right to download, access, view, copy, paste, print, and annotate Purchased Content (and share annotations) and including the ability for Google to store Purchased Content on a computer or other device for access by the Authorized End User when disconnected from the internet;
(c) distribute Purchased Content to Authorized Resellers for the sole purpose of fulfilling requests from Authorized End Users for the uses allowed herein;
(d) provide to Authorized End Users download files of Purchased Content as further described in Section 2.5 (Download of Purchased Content);
(e) transmit, reproduce and otherwise use Google Editions Content for the limited purposes of technically enabling the foregoing and for testing without public display; and
(f) continue providing Authorized End Users the rights set forth herein to Purchased Content after any termination of the Agreement (or this Addendum) or withdrawal of the Purchased Content.
2.2 Licensed Territories. Google will use and will require that the Authorized Resellers use commercially reasonable efforts to restrict sales of Google Editions to the Licensed Territories, but you agree that, once purchased, Authorized End Users can access and view Purchased Content in any location. Google does not (and the Authorized Resellers do not) guarantee that efforts to limit sales to the Licensed Territory will in every instance be effective and you understand that in some instances, Google Editions may be purchased by end users outside of the Licensed Territories. You understand and agree that such purchases shall not be deemed a breach of the Agreement (or this Addendum) by Google.
2.3 Copy/Paste and Printing. The Publisher Account will allow you to choose copy/paste and printing settings for your Purchased Content as further described in the Program Policies.
2.4 Scans. The digital file types accepted by Google for Google Editions are described in the Program Policies. If you do not provide Google with digital files, then you agree that Google Editions will be sold using the scans of Google Editions Content created by Google. In such case, you may view the Google Edition in the Publisher Account before it is made available for purchase. You authorize Google to use, copy, and modify the Google Editions Content as necessary to create Google Editions.
2.5 Download of Purchased Content. You agree that Google may provide download files of Purchased Content to Authorized End Users, Authorized Resellers and to E-Reader Devices directly and through third parties on behalf of Authorized End Users that purchased the Purchased Content. You must elect in the Publisher Account either to allow download of the Purchased Content with Digital Rights Management ("DRM") restrictions or to allow download of Purchased Content without DRM restrictions.
(a) Download without DRM Applied. If you choose that downloads of Purchased Content are allowed without DRM restrictions, then any restrictions on copy/paste and printing set by you will not apply to those downloaded copies.
(b) Download with DRM. If you choose that downloads of Purchased Content will have DRM restrictions, then Google will apply industry standard DRM as further described in the Program Policies. Google will notify you at least thirty (30) days prior to changing the DRM standards and protocols applicable to Google Editions.
2.6 Authorized Resellers. You agree that Google Editions may be sold through Authorized Resellers. Where the end user purchases Google Editions from an Authorized Reseller, the end user will pay the Authorized Reseller directly and Google will pay you the Reseller Revenue Split on these sales.
2.7 E-Reader Devices. You agree that Authorized End Users may download, access and view Purchased Content on E-Reader Devices. Google is authorized to transfer download files of Purchased Content directly to E-Reader Devices and through Authorized Resellers.
2.8 Marketing and Promotion. You agree that Google may feature specific Authorized Works for marketing and promotional efforts related to Google Editions, and will notify you in advance of what Authorized Works are included in these efforts.
2.9 Google Discretion. Google reserves the right not to sell any book authorized by you as Google Editions at any time in its discretion. Google reserves the right to terminate or suspend the services described in this Addendum or that may be offered to you from time to time with written notice to you. If Google terminates or suspends the services, Google shall pay your earned balance to you within approximately ninety (90) days after the end of the calendar month in which Google suspends or terminates the service.
3. Pricing Options.
3.1 Pricing of Google Editions. You may recommend a price to sell each book authorized as Google Editions (the "Specified Price"). If you do not recommend a Specified Price, then Google Editions of that book will be sold at a price determined by Google (the "Default Price") as further explained in the Program Policies. Google or Authorized Resellers, as applicable, will set the final price of Google Editions but Google will pay revenue share to you based on the List Price (as described in Section 4.1 (a) (Standard Revenue Split) and Section 4.1 (b) (Reseller Revenue Split)).
3.2 Bundled Price. You may recommend a price for Authorized Resellers to sell Google Editions when the end user is also purchasing a print version of the book (the "Bundled Price"). Authorized Resellers have discretion to set the final price of Google Editions to end users but Google will pay revenue share to you based on the List Price (as described in Section 4.1 (b) (Reseller Revenue Split)).
3.3 Change of Pricing Options. You may (a) change the Specified Price and the Bundled Price (if applicable) for one or more books and (b) switch between the Specified Price and Default Price, in each case, by changing these settings in the Publisher Account or by written notice to Google. Google will implement the changes within thirty (30) days of receipt.
3.4 Discounts. Google and its Authorized Resellers may discount the List Price and the Bundled Price at their sole discretion and in this case the Standard Revenue Split and the Reseller Revenue Split will be based on the List Price.
3.5 Promotional Programs. You and Google and you and Authorized Resellers may agree to offer Google Editions as part of promotional programs at a discounted price. In this case, the Standard Revenue Split and the Reseller Revenue Split will be based on the discounted price.
3.6 Cooperative Advertising Programs. You agree to provide Google and Authorized Resellers cooperative advertising funds in an amount similar to what you provide to other retailers, if any, for Google to use to promote and market your Google Editions.
4. Payment Terms.
4.1 Revenue Split.
(a) Standard Revenue Split. For Google Editions sold through the Google Services, Google will pay you the Standard Revenue Split.
(b) Reseller Revenue Split. For Google Editions sold through Authorized Resellers, Google will pay you the "Reseller Revenue Split".
(c) Payments to Affiliates. Google will be responsible for any payments to third parties that promote and sell Google Editions from the third party's website.
4.2 Payment Terms. Payments for sales of Google Editions shall be transferred by Google to you no more than sixty (60) days after the end of any calendar month for revenues received in that month. Google may use Google Checkout to make payments to you, in which case you agree to the terms in Exhibit A. Payments will be transferred via the ACH Network (or by other means determined by Google) and paid to you in US dollars or other currencies as made available by Google to you. Notwithstanding the foregoing, Google will not be obligated to transfer funds to you if your earned balance at the time of disbursement or transfer is less than one hundred dollars ($100.00). If you elect to terminate this Addendum, Google shall pay your earned balance to you within approximately ninety (90) days after the end of the calendar month in which Google receives notice of termination, but in no event shall Google make payments for any earned balance less than $1. The amounts reported by Google as purchases shall be the number used in calculating payments hereunder, if any.
4.3 Reports. Google shall provide you with access to reports of Google Editions purchases in the form generally made available to content providers. More information about the data provided by Google in reports is set forth in the Program Policies.
4.4 Exceptions; Repayments. Notwithstanding the foregoing, Google shall not be liable for any payment (a) based on any purchase of or access to Google Editions through any fraudulent or invalid means, as determined by Google in its sole and absolute discretion, including but not limited to the fraudulent use of credit cards or other means of payment or (b) based on purchases of Google Editions that are refunded or (c) subject to a credit card charge back by an end user. Google reserves the right to withhold payment, offset amounts owed to you or debit your bank account due to any of the foregoing or any breach of this Addendum by you. You agree to cooperate with Google in its investigation of any of the foregoing. You are responsible to refund and/or repay to Google any payment made by Google under this Addendum that is later subject to a return, chargeback, reversal, refund, adjustment or rejection whether by a bank, customer action or otherwise, or that was paid in error or paid as a result of miscalculation by either Google or you. ("Repayments"). You expressly authorize Google to offset and net current amounts owed by Google to you against the amount of any Repayments owed by you to Google. Google may also at its option invoice you for Repayments owed to Google, and you agree to pay Google the invoice amount within thirty (30) days of written notice from Google.
4.5 Fraud. You shall not, and shall not authorize or encourage any third party to directly or indirectly purchase or otherwise obtain access to Google Editions through any automated, deceptive, fraudulent or other invalid means, the use of robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of software or credit cards.
4.6 Refunds. Google reserves the right to grant refunds of Google Editions purchases in its sole and absolute discretion (and in compliance with applicable law and regulations) including in the situations described in Section 4.4 (Exceptions), Section 4.5 (Fraud), and due to quality concerns.
4.7 Taxes. All payments made in connection with this Addendum are exclusive of taxes imposed by governmental entities of whatever kind and imposed with respect to the transactions provided under this Addendum. Google or its Authorized Resellers, as applicable, shall be responsible for any taxes related to payments it makes under this Addendum other than taxes based on your income. If Google or its Authorized Resellers are required to deduct or withhold taxes from any payment made to you and remits such taxes to the local taxing jurisdiction, then Google or its Authorized Resellers (as applicable) shall duly withhold and remit such taxes and shall pay to you the remaining net amount after the taxes have been withheld. If Google or its Authorized Resellers (as applicable) is required to charge taxes to any end user who purchased Google Editions, then Google or its Authorized Resellers shall calculate the amount of the tax and remit such tax to the local taxing jurisdiction.
4.8 Credit Report. You authorize Google to obtain from time to time a credit report and to otherwise make credit or background inquires on you as Google deems appropriate.
5.1 Term. The Term of this Addendum shall commence on the Addendum Effective Date and continue for the Term set forth in the Agreement; provided that either party may terminate this Addendum with thirty (30) days written notice to the other party and the Agreement will otherwise continue in full force and effect unless the terminating party in its written notice also elects to terminate the Agreement.
5.2 Withdrawal of Google Editions. You may provide written notice to Google to discontinue offering future sales of one or more books authorized as Google Editions.
5.3 Obligations upon Termination or Withdrawal of Google Editions. If this Addendum is terminated by either party, then Google will cease to sell your Google Editions to additional end users and will similarly instruct its Authorized Resellers. If you withdraw one or more Google Editions from future sales, then Google will cease to sell those Google Editions to additional end users and will similarly instruct its Authorized Resellers. You acknowledge that, once an end user purchases a Google Edition, the sale is final subject only to Google's return and refund policies. All sales will survive any termination of the Agreement (or this Addendum) or withdrawal of the Google Edition by you. You request and authorize Google and its Authorized Resellers to continue providing Authorized End Users with access to Purchased Content for sales that occurred prior to the date of termination or withdrawal of that Google Edition. Any provision of the Agreement requiring Google to cease display of Authorized Content upon termination or upon withdrawal of a particular Authorized Title is void to the extent that it applies to Purchased Content. The provisions of Sections 2.1(f), 5.3, 7, 8, and 9 (in addition to those sections of the Agreement that survive termination) will survive any termination of this Addendum.
6. New Features. From time to time, Google may offer you new features to Google Editions as well as other services, products and features to promote the Authorized Content. Some of those services, products and features may have additional terms and conditions than those contained herein. You may participate in any or all new services, products and features offered by Google by individually agreeing to the terms of such new products and features on the Publisher Account and in other ways the terms may be presented to you.
7. Representations and Warranties; Indemnification. In addition to the representations and warranties provided by you under the Agreement, you further represent and warrant that (a) you hold, and will continue to hold, all necessary rights to the Google Editions Content to enter into this Addendum and to grant the rights set forth herein and (b) the Google Editions Content does not violate any applicable law, statute, ordinance or regulation. You agree to indemnify, defend and hold harmless Google, its Authorized Resellers, and each of their respective directors, officers, employees and agents against any claim, demand, cause of action, debt or liability, including reasonable legal fees based on or arising out of a claim (i) alleging facts that would constitute a breach of the representations and warranties in this Section 7 or (ii) that Google's use of the Google Editions Content or any other materials delivered by you to Google under this Addendum violates any laws or infringes any third-party rights including but not limited to intellectual property rights, privacy rights, rights against defamation, and contractual rights.
8. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN SECTION 7, THE PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9. Entire Agreement. This Addendum along with the Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings, both written and oral, regarding such subject matter. In particular, any previous Addendum to the Agreement entered into between you and Google for the sale of Authorized Content is terminated and superseded by this Addendum. In the event of a conflict between this Addendum and the Agreement, this Addendum will prevail. Except as modified by this Addendum, the Agreement shall remain in full force and effect; except that any provision of the Agreement that (a) limits the amount of Authorized Content viewable by an End User, (b) limits the way End Users can browse Authorized Content, or (c) requires Google to disable the features - cut, copy, paste and printing - does not apply to the Google Editions Content.
TERMS FOR PROCESSING GOOGLE PAYMENTS
Google Payment Corporation ("Google Checkout") is a subsidiary of Google and is separately regulated. Google has requested Google Checkout, on behalf of Google and its affiliates (collectively for purposes of these terms, "Google"), to (i) make certain disbursements or debits to your designated bank account of funds owed to you by Google ("Google Provider Payments"), and (ii) make available certain information to you regarding those disbursements and debits. You acknowledge that, in processing these Google Provider Payments, Google Checkout is acting as agent of Google for the sole purpose of providing you certain information and disbursing or debiting payments to your designated bank account on behalf of Google.
RELATION TO CHECKOUT TERMS
Google Checkout may process Google Provider Payments and show those scheduled Google Provider Payments in the account record of a Checkout Account that is used for other purposes, such as purchase transactions. Checkout's Processing of Google Provider Payments is not subject to the Checkout Seller or Buyer Terms of Service, and is subject solely to these Terms.
REQUIREMENTS AND OPERATION OF PROCESSING GOOGLE PROVIDER PAYMENTS
You must have a merchant account with Google Checkout (“Google Checkout Account”) to receive Google Provider Payments. You must register a U.S. bank account and a bank account in each territory where you are paid in the local currency in order to receive payments from Google. Payments from Google to you, and debits from you to Google, will be processed on Google’s behalf by Google Checkout through ACH or other means determined by Google. To receive payments from Google, and pay debits to Google, you agree to provide identifying and financial information regarding your designated bank account to Google and to Google Checkout from time to time. You acknowledge that Google Checkout is acting solely as agent on behalf of Google in the processing of credits and debits and other payments and debits from Google to your designated bank account. Google Checkout may show in your Checkout Account records the amount of funds scheduled for payment by Google to you on a future scheduled payment date. These amounts are shown to you in your Checkout Account record for convenience and informational purposes only. The amounts of Google Provider Payments shown in the Google Checkout Account record are not owned by you and are not owed to, or payable to, you by Google Checkout. These scheduled payments are subject to change and cancellation by Google. No debtor/creditor relationship is established between you and Google Checkout in connection with the payment amounts shown in the Google Checkout Account record. Google Checkout will follow the instructions of Google in arranging for a payment to your designated bank account, or a debit from your designated bank account, in connection with a Google Provider Payment, regardless of the amounts shown in the Google Checkout Account record.
By agreeing to these terms, you authorize Google and any affiliate of Google that assists in provisions of its services to you to initiate through the ACH network or other means determined by Google, without prior notice to you: (A) credits to your designated bank account to pay funds owed by Google to you, in accordance with Google’s settlement schedule and/or when payments are otherwise due to you under the terms of the Google services in which you participate; and (B) debits from your designated bank account to obtain funds at any time, subject to the conditions in this authorization, to pay for a return, chargeback, reversal, refund, adjustment or rejection relating to or to correct an error in the calculation or processing of a previous Google Payment made to such bank account. For each settlement period, you authorize Google and Google Checkout to combine and/or net funds owed or payable by Google and Google Checkout to you into a single credit payment to your designated bank account. Similarly, in the event that you owe funds to both Google Checkout and Google during a particular settlement period, you authorize Google and Google Checkout to initiate a single debit to your designated bank account to obtain funds owed to both entities.
Your payment authorization shall remain in effect while you participate in one or more Google services and for a period of one hundred eighty (180) days following termination or cancellation of such participation. You acknowledge that you must contact Google, and not the bank holding your designated bank account, in order to cancel the payment authorization set forth in this section.
If you have any dispute regarding Google Provider Payments, including the information regarding such payments shown in the Google Checkout Account record, such payments made by Google to your designated bank account, or the debits related to such Payments made by Google from your designated bank account, your sole remedy is to contact Google to investigate and/or resolve the matter.
You are responsible for maintaining the confidentiality of your username/password. You are responsible for all activity regarding the Google Provider Payments by persons that use your username/password, including any consequences of the use or misuse of the username/password. You agree to notify Google Checkout or Google immediately of any unauthorized use of its username/password or any other breach of security regarding its username/password or its Google Checkout Account of which you have knowledge.
DISCLAIMER OF WARRANTIES
THE PROCESSING OF GOOGLE PROVIDER PAYMENTS IS PROVIDED "AS IS" AND WITHOUT WARRANTY. GOOGLE CHECKOUT AND ITS AFFILIATES AND AGENTS DISCLAIM ALL WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE), INCLUDING WITHOUT LIMITATION WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GOOGLE CHECKOUT AND ITS AFFILIATES AND AGENTS DO NOT WARRANT THAT THE PROCESSING OF GOOGLE PROVIDER PAYMENTS WILL BE UNINTERRUPTED OR ERROR FREE. GOOGLE CHECKOUT AND ITS AFFILIATES AND AGENTS WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE PROCESSING OF GOOGLE PROVIDER PAYMENTS.
LIMITATION OF LIABILITY
GOOGLE CHECKOUT (INCLUDING ITS AFFILIATES AND AGENTS) WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, OR PROCUREMENT OF SUBSTITUTE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF GOOGLE CHECKOUT OR ITS AFFILIATE OR AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE OR LOSS.
Google or Google Checkout may terminate the processing of Google Provider Payments at any time and for any reason without prior notice to you. If Google or Google Checkout terminate the processing of Google Provider Payments, Google will contact you regarding alternate payment arrangements. If the processing of Google Provider Payments is terminated by you or your designated bank, you may contact Google to arrange for an alternative payment method.