PUBLISHER ALLEY LICENSE AGREEMENT
TERMS AND CONDITIONS
1.0 DEFINITIONS
As used throughout this Agreement the following terms have the following meanings:
1.01“Effective Date” means the date of this Agreement.
1.02“Licensed Data” means the data elements in electronic database form which listed on Schedule 1.02 attached hereto and made a part hereof.
1.03“License Fee” means the annual license fee payable by Licensee, which may be adjusted annually by YBP. With respect to renewal license fees applicable to any Renewal Period, YBP shall provide prior notice to Licensee each year, by invoice or otherwise, of the annual renewal license fee applicable to such Renewal Period (the “Renewal Fee”). Unless Licensee elects to terminate this Agreement as provided herein, such Renewal Fee shall be due and payable as provided in YBP’s invoice.
1.04 “RWA” means the Romance Writers of America
1.05 “Member Benefit Agreement” means the agreement between RWA and YBP to offer Publisher Alley data to members of RWA in consideration of License Fee negotiated between RWA and YBP.
1.06“Order Form” means the first page hereof.
2.0 LICENSE
2.01Subject to the terms and conditions of this Agreement, YBP hereby grants to Licensee, and Licensee hereby accepts from YBP, a non-exclusive, nontransferable and revocable license (i) for all authorized users with valid usernames and passwords pursuant to Section 4.02 hereof, to display for internal business purposes all or a portion of Licensed Data in the United States of America, in “read-only” access; and (ii) to use all or a portion of Licensed Data for Licensee’s internal use only. Licensee will not make any or any portion of Licensed Data accessible to any person or for any purposes other than as specifically authorized herein. Licensee will use its best efforts to prevent or restrict the downloading, transmission, display, or copying of all or any portion of the Licensed Data except to the extent necessary for purpose of analyzing the Licensed Data as expressly permitted herein. Downloading data for Licensee’s titles and using the Licensee’s own sales data in Excel spreadsheets or Access databases is permitted. Downloading data with the specific intent of exporting the data to a third party not specifically named in this agreement is not permitted without written permission of Publisher Alley.
2.02The license granted hereby is personal to Licensee. Licensee may use the license solely for the purposes specified above. Nothing contained in this Agreement will, or will be deemed to, convey to Licensee or any end-user any title or ownership interest in all or any portion of the Licensed Data.
2.03Neither the Licensed Data, nor any portion thereof, may be used or displayed on the Internet by Licensee without YBP’s prior written consent.
2.04The license is granted in accordance with the Member Benefit Agreement with RWA, and is granted conditionally on the Licensee’s continued membership in RWA.
2.05YBP reserves all rights not expressly granted to Licensee hereby with respect to the Licensed Data and any portion thereof. This reservation specifically applies, but is not limited, to any media, mode, or method of distribution or transmission or other technology that may now exist or be commercialized or developed in the future.
3.0 TERM
3.01Subject to the terms and conditions hereof, this Agreement will be effective for a time period beginning on the Effective Date and ending at 11:59 P.M. (Eastern U.S. Time) on the day preceding the first anniversary of the Effective Date or such sooner date on which this Agreement may terminate pursuant to the terms hereof (the “Initial Period”). This Agreement shall automatically renew for additional periods of one (1) year each on the same terms and conditions Section 1.03, subject to such changes in the License Fee as described or referenced in hereof, unless or until (a) either party provides the other party with written notice of termination of this Agreement at least sixty (60) days prior to the end of the Initial Period or the then applicable renewal year, (b) this Agreement is sooner terminated in accordance with the express provisions of this Agreement, or (c) within thirty (30) days of receiving notice of the Invoiced Renewal License Fee Licensee provides YBP with written notice of termination (the Initial Period together with any succeeding renewal periods being collectively referred to herein as the “Term”).
3.02(a) Either party may terminate this Agreement at any time during the Initial Period or a Renewal Period on not less than 30 days’ prior written notice to the other party. The License Fee is non-refundable.
3.03 YBP may terminate this Agreement immediately at its own option by giving Licensee written notice upon an Event of Default.
3.04 YBP may terminate this Agreement immediately at its own option in the event of the termination of the Member Benefit Agreement between YBP and RWA.
3.05 YBP may terminate this Agreement immediately at its own option upon receipt of validated information from RWA that Licensee is no longer a member of RWA.
3.06Immediately upon the expiration or sooner termination of this Agreement for any reason whatsoever:
(a) all rights and licenses granted to Licensee hereunder will automatically terminate;
(b) Licensee will permanently delete all of the Licensed Data and any copies thereof which exist thereon from all computers, database, and other systems and/or storage medium of Licensee (or any persons or entities in Licensee’s direct control) in any location, whether backup or otherwise, and;
(c) Licensee will not use, or permit any user having access by, through, or under Licensee to use, all or any portion of the Licensed Data in any way.
4.0 THE PARTIES’S OBLIGATIONS
4.01The Licensee will:
(a) not directly or indirectly duplicate, copy, transmit, publish, provide access to (by electronic or any other means), exchange, or use, all or any portion of the Licensed Data for any purpose except as expressly permitted in this Agreement;
(b) use its best efforts to ensure compliance with Licensee’s obligations under this Agreement by end users who have access to Licensed Data, through or under Licensee;
(c) except to display and use the Licensed Data as expressly provided herein, not sell, offer for re-sale, distribution, rent, sublicense or lease all or any portion of the Licensed Data, either for consideration or without cost, nor use all or any portion of the Licensed Data in a network (including the Internet), timesharing, multiple central processor unit or multi-user arrangement;
(d) not combine or incorporate all or any portion of the Licensed Data with any other program, database, record or system which will be sold, offered for re-sale, distributed, rented, sublicensed, or leased.
(e) pay all sales, use, value-added, excise or similar taxes associated with Licensee’s or its user’s use of all or any portion of the Licensed Data; and
(f) Not permit any third party, including, without limitation, any customer or patron of Licensee to use any Licensed Data in connection with Internet-based or other electronic online commerce.
4.02 At the beginning of the Initial Period and throughout the Term of this Agreement YBP will make the Licensed Data accessible to Licensee and employees of Licensee gaining access through Licensee by means of a web site maintained by YBP on the World Wide Web having a URL of www.publisheralley.com or www.puballey.com or such other address as may be designated by YBP by notice to Licensee. Licensee shall, as of the Effective Date, be assigned an Administrator, user identification codes and passwords, which user identification codes shall be activated upon receipt by YBP of the amount of the License Fee due hereunder. Each user identification code and password will permit access to the Licensed Data by only one user at any given time, subject to all terms and conditions hereof. User identification codes and passwords are non-transferable.
5.0 CONSIDERATION
The license granted herein is made in consideration of payments collected by RWA in connection herewith, including Licensee’s obligation to pay the YBP License Fee. The License Fee must be paid prior to the commencement of the Initial Period and, thereafter, prior to the commencement of each Renewal Period.
6.0 NO WARRANTY:LIMITATION OF LIABILITY; INDEMNITY
6.01THE LICENSED DATA AND ANY PORTIONS THEREOF ARE PROVIDED “AS IS” WITHOUT WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXPRESSLY EXCLUDED HEREBY ARE ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION GIVEN BY YBP, ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. The entire risk as to the results and performance of the Licensed Data is assumed by Licensee.
6.02Neither YBP nor anyone else who has been involved in the creation, production or delivery of all or any portion of the Licensed Data will be liable for direct, indirect, special, incidental, punitive, exemplary or consequential damages (including, without limitation, damaged for claims by third parties, loss of business profits, business interruption, loss of business information and the like) arising out of the use or inability to use all or any portion of the Licensed Data, even if YBP or such other party shall have been advised or otherwise have known of the possibility of such damages. In no case will the liability of YBP or any such other party hereunder exceed the amount of the License Fee actually paid.
7.03 Licensee agrees to indemnify, defend and hold harmless YBP and all of its officers, directors, employees, attorneys, accountants and agents against any and all demands, causes of action, attorneys’ fees based upon a claim that (i) if true would constitute a breach of Licensee’s representations, warranties or agreements hereunder or (ii) arises out of the negligence or willful misconduct of Licensee. The forgoing indemnity will survive the termination hereof.
7.0 INFRINGMENT
8.01 The Licensed Data is copyrighted, which copyrights are held by YBP and, with respect to certain items contained therein, by third parties. Unauthorized copying, distribution or disclosure of all or any portion of the Licensed Data, including Licensed Data that has been modified, merged or included with other data, is expressly forbidden. Licensee will be held legally liable for any copyright infringement that is caused or encouraged by its failure to abide by the terms of this Agreement.
8.02 Licensee will promptly notify YBP in writing if anyone makes a claim against Licensee that all or any portion of the Licensed Data infringes their rights. If Licensee provides YBP with sufficient notice of any such infringement, YBP at its option will (i) make the Licensed Data non-infringing (ii) obtain for Licensee the right to use the Licensed Data, or (iii) terminate this Agreement and give Licensee a prorated refund of any license fee paid during the then current year in which the such claim occurs. The foregoing is the ONLY remedy available to Licensee, and the ONLY liability of YBP, in the event of a claim of infringement.
9.0 MISCELLANEOUS
9.01 Any failure by either party to exercise any right hereunder will not be deemed a continuing waiver of such right. If any of the terms or provisions of this Agreement are ruled to be invalid or unenforceable by a court or administrative tribunal of competent jurisdiction, the remainder of the Agreement will not be affected thereby.
9.02 This Agreement and the transactions provided for herein will be governed, construed, and enforced according the laws of the State of New Hampshire (excluding any conflict-of-law provisions thereof).
9.03 Licensee consents and agrees that all legal proceedings relating to the subject matter of this Agreement or the Order Form will be maintained in courts within the State of New Hampshire, and Licensee consent and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts.
9.04 License will not assign this Agreement, by operation of law of otherwise, without YBP’s prior written consent, not to be unreasonably withheld.
9.05 English will be the official text for this Agreement. No translation will be used to construe the meaning or intent hereof.
9.06 All notices required or permitted to be given by one party to the other under this Agreement will be sufficient if hand-delivered, sent by recognized overnight courier, receipt acknowledged, or sent by certified mail, return receipt requested, to the other party at the respective address first set forth in the Order Form or to such other address as may be designated by notice from one party to the other party pursuant to this paragraph.
9.07 If the use of an electronic signature is needed, each party shall adopt as its authorized signature an electronic identification consisting of symbols(s) or code(s) which are to be affixed to or contained in each electronic transmission. The presence of any such signature in an electronic transmission shall be sufficient to verify that such party originated such transmission. Each party shall inform the other in writing of the symbol(s) or code(s) constituting such signature. Neither party shall disclose to an unauthorized person such symbol(s) or codes(s) of the other party.
9.08 This Agreement and the Order Form constitutes the complete and exclusive statement of the terms and conditions between the parties regarding the subject matter hereof and supersedes all prior proposals, understandings, and agreements, oral and written, between the parties relating hereto, notwithstanding any order form submitted by Licensee either before or after the Effective Date. This Agreement may not be modified or altered except by written instrument duly executed by both parties. This Agreement may be executed with counterparts, all of which, when taken together, will constitute a single instrument. This Agreement will be binding upon, and will inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
SCHEDULE 1.02
Publisher Alley is an online tool for analyzing book sales through Baker & Taylor, YBP Library Services, Lindsay & Croft, and Majors Book Company. It features sales and bibliographic data for every title published since January of 1997 through all channels – retail, library, international, and government/other.
Through Publisher Alley’s search forms and reporting tools, book publishers can:
· Analyze performance by title, subject, market, and overall imprint or company.
· Identify sales trends by company, imprint or subject.
· Search for title sales by subject (BISAC, LC or keyword), title, author, editor, imprint, sales level, inventory level, price, publication date, author affiliation, and much more.
· Uncover unrepresented market niches and new title opportunities.
· Project sales data for title P&Ls.
· Compare cloth and paper edition sales and inform binding decisions.
· Research bestsellers.
· Review pre- and post-pub demand figures.
· Review inventory and on-order levels.
· Review ISBN-level returns as well as returns by period.
· Determine number of copies for first printings and inform reprint decisions.
· Price titles to market.
· Identify competitive books or series.
· Monitor and tailor marketing campaigns.
· Evaluate acquisitions.
· Prepare buy recommendations.
