EXCITICA SELLER TERMS AND CONDITIONS

 

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eXcitica is a subsidiary of Excessica publishing LLC, whose principal place of business is at 486 Ripley #164, Alpena MI 49707, USA (hereinafter called EXCITICA);

 

Excitica is an online merchant engaged in the business of selling, displaying, marketing and promoting electronic books or eBooks for sale to online retail customers on its website (www.excitica.com).

Publisher is the owner of the copyright or holds the license to the copyright to certain electronic book(s) or eBook(s) and desires to sell said eBook(s) worldwide on a non-exclusive basis, to online users on www.excitica.com as an online venue to market and sell such content, in accordance with the provisions of this Agreement.

 

Therefore, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

 

SECTION 1. DEFINITIONS

  1. “Author” shall mean the creator and owner of literary work
  2. “Electronic book” and/or “eBook” shall mean an electric encoded text format of a book or written work, to be marketed and sold via the Internet. EBooks reproduce a textual book and do not represent a modification of the original work.
  3. “Intellectual Property Rights” shall mean all rights arising from or in respect to the following, whether protected, created or arising under the laws of the United State or any other jurisdiction: (i) business names, trade names, registered and unregistered trademarks and service marks; (ii) patients; (iii) copyrights, copyright registrations, writing and other copyrightable works of authorship, including computer programs, databases and documentation thereof, and (iv) proprietary and non-public business information including trade secrets, know-how, inventions, discoveries, improvements, concepts, ideas, methods, processes, design, formula, technical data, drawing, specifications, research and development information and other proprietary and nonpublic information.
  4. “Party” shall mean either Excitica or Publisher, and “Parties” shall refer to Excitica and Publisher collectively.
  5. “Title” shall mean a literary work including, without limitation, a novel, book, short story, article, chapter or excerpt thereof provided to Excitica by Publisher.
  6. “User” shall mean an end user and/or retail customer who has registered for an account with Excitica in accordance with Excitica’s standard registration process.

 

SECTION 2. GRANT OF RIGHTS

2.1 Non-Exclusive Appointment and Sale     Publisher herein appoints Excitica as an authorized online merchant of its eBooks and grants and assigns to Excitica all rights necessary to transmit electronically and sell to its Users on www.excitica.com copies of the Titles it has received from the Publisher. Publisher shall provide Excitica with Titles during the Term of this Agreement and Excitica shall make such Titles available to Users through www.excitica.com in accordance with the terms hereof. Excitica is not required to accept or list any particular Title submitted by Publisher. All EBooks provided by Publisher shall be subject to this Agreement.

 

2.2 Publisher Owner of Title      Excitica and Publisher expressly acknowledge herein that Publisher owns or is licensor to all right, title and interest in and to the Titles. All rights not expressly granted hereunder are reserved by Publisher.

 

2.3 Territorial and Non-Exclusive Rights      Excitica may sell Publisher’s EBooks anywhere in the world, but without any exclusive rights in any territory to Publisher’s EBooks. Publisher reserves the right to sell its EBooks directly and designate and enter into agreements with any additional retail and online stores and/or merchants.

 

2.4 Price     Publisher shall provide Excitica with the EBook Manufacturer’s Retail Price (“MSRP”) which shall not be higher than the MSRP for which the same eBook is listed at Publisher’s website or any other online retail store. Publisher may change its MSRP at any time so long as the price does not increase over the MSRP for which the eBook is being sold at Publisher’s website or any other online retail store.

 

2.5 Removal and Withdrawal of Title from Sale     Publisher has the right to remove and/or withdraw any Title from sale on Excitica website. Upon removal by Publisher, Excitica will cease sale of the Title. Excitica will maintain archival copies of such Titles solely to permit the authorized continued access by any User who has purchased a copy of any such Title prior to its remove by Publisher from sale, provided that such continuing access is not in violation of any legal mandate. Excitica reserves the right, in its sole discretion, so remove any particular Title from sale at any time and for any reason.

 

SECTION 3. DUTIES OF PUBLISHER AND Excitica

 

3.1 Publisher     With regards to all EBooks listed by Publisher with Excitica, Publisher shall provide to Excitica all digital formats created by Publisher to be made available for download.

 

3.2 Excitica     Excitica shall use its best efforts to sell and promote the sale of such eBooks to Users. Excitica shall provide and maintain, at its own expense, adequate sales personnel, customer service personnel and computer personnel, as necessitated for operation of its online retail store. Excitica shall use its best efforts to maintain an attractive and accessible website but shall not warrant or be liable for website downtime or interrupted transmissions.

 

SECTION 4. PAYMENT AND REPORTING

 

4.1 Excitica      In consideration for services rendered by Excitica as described herein, Excitica shall retain 40% of a User’s order(s) for any eBook(s) placed with its online retail store, located at www.excitica.com. If Excitica is running a promotion, sale or special offer to its users resulting in a discounted amount off Publisher’s MSRP, Excitica shall only deduct any discounted amount from the 40% payment Excitica would have received from the sale if Excitica had not offered the discount. Excitica shall pay any and all sales taxes required by the laws and regulations governing the State of Michigan and online merchants. Excitica shall be liable for any and all taxes resulting from its payment of forty percent of the sale for its services as an independent contractor online merchant.

 

4.2 Publisher     Publisher shall receive sixty percent (60%) of a User’s order(s) for Publisher’s eBook(s) placed with Excitica’s online retail store, located at www.excitica.com. In the event Publisher offers a sale or promotion resulting in a discount of the Publisher’s MSRP, Excitica shall deduct that discounted amount off of the 60% payment Publisher would have received from the sale if it had not offered the discount. Publisher shall be liable for any and all taxes resulting from its payment of sixty percent from the sale of its eBook(s).

 

4.3 Payment     Excitica shall remit payment to Publisher for the sale of each eBook in accordance with the percentages set forth herein, no later than three months (90 days) after the end of each quarter (quarters ending March, June, September, December) during the Term of the Agreement for sales made during that quarter as reported by Excitica.

 

4.4 Reports      Excitica shall make available to Publisher via Publisher’s interface on the website daily reports of related sales information for each eBook, including units sold, total sales and calculation of the amounts payable to Publisher hereunder.

 

SECTION 5. REPRESENTATIVES AND WARRANTIES

 

5.1 By Excitica.      Excitica represents, warrants and covenants that:

 

(a)    it is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Michigan, and has the rights, powers and privileges to execute, deliver and perform its obligations under this Agreement and the execution, delivery and performance of this Agreement have been authorized by Excitica;

(b)    no DRM will be applied to eBooks submitted to Excitica;

(c)    it shall comply with all the laws and regulations applicable to the services provided by Excitica, and;

(d)    the performance of this Agreement by Excitica does not and will not breach, infringe, contravene or interfere with any Intellectual Property Rights for any other person, firm or entity.

 

5.2 By Publisher.      Publisher represents, warrants and covenants that:

(a) it is a company, duly organized, validly existing and in good standing under the laws of their state and has the rights, powers and privileges to execute, deliver and perform its obligations under this Agreement and the execution, delivery and performance of this Agreement have been authorized by Publisher. OR, they are an individual self-publishing author in compliance with the laws of their state and has the rights, powers and privileges to execute, deliver and perform its obligations under this Agreement and the execution, delivery and performance of this Agreement have been authorized by Publisher.

(b) it has all necessary rights to make the grant and assignment of rights it has made to Excitica under this Agreement and its submission of the Titles hereunder and the use of its Titles does not violate any obligation Publisher owes to any third party or infringe upon the Intellectual Property Rights of any person, including the Author of the Title;

(c) the Titles do not and will not infringe upon any common law or statutory right in any other literary, dramatic or other material and no material in the Titles violates any Intellectual Property Rights of any other proprietary rights of any person, firm or corporation; the Titles do not and will not contain libelous or unlawful material; the Titles do not and will not contain any recipes, formulae or instructions that, if implemented, might be injurious to the User or others;

(d) Publisher’s trademarks, trade names, logos, designs and icons do not infringe upon or violate any trademark or other Intellectual Property Rights of any other person, firm or entity;

(e) there is no outstanding litigation, claim or legal dispute pending against or involving the Title, ownership and/or copyright in the Title, or in any part of it, or in the rights which are covered by this Agreement;

(f) the eBooks will be free from defects in material and workmanship and Publisher warrants that any defect will be corrected by Publisher;

(g) the regular MSRP of the Title on the Excitica website will not be higher than he MSRP or listed price of any Title on any other online website selling the Title;

(h) the eBook provided to Excitica do not and will not contain any viruses, Trojan horses, trap doors, worms or any other malicious or hidden computer programming;

 

5.3 DISCLAIMER OF WARRANTY. EXCEPT EXPRESSLY SET FORTH IN THIS AGREEMENT, EXCITICA DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY FOR MERCHANTABILIT OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DATA ACCURACY, SYSTEM INTEGRATION AND THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING.

 

EXCITICA DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE AND EXCITICA DOES NOT WARRANT ANY PARTICULAR COURSE OF DEALING OR COURSE OF PERFORMANCE OR PROVIDE ANY WARRANTY THAT THE SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS, WITHOUT LIMITING THE FOREGOING, EXCITICA DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION OR ERROR.

 

6.1 Initial and Renewal Terms.      The initial term of this Agreement shall commence as of the Effective Date and shall continue until the first anniversary of the Effective Date unless terminated sooner as provided herein, and shall continue for successive renewal terms of one (1) year until terminated in accordance with the terms hereof (the Initial Term together with any Renewal Term shall be defined as the “Term”)

 

6.2 Termination.      Either party may terminate the Agreement for any reason upon ninety (90) days written notice to the other party, sent via certified mail, to the address listed above. Either party may suspend performance and/or terminate this Agreement immediately upon written notice, sent via certified mail, to the other part if such other party is in material breach of any representation, warranty, covenant, term, obligation, or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the other party. Upon termination of this Agreement by either party, Excitica shall cease selling or listing all Publisher’s Titles, provided that Excitica will maintain archival copies of such Titles solely to permit the authorized continued access by any User who has purchased a copy of any such Title prior to the termination of this Agreement, provided that such continuing access is not in violation of any legal mandate. Excitica shall delete all such archival copies of each Title as such time as it reasonably determines it has no obligation to provide continuing access to said Title. If either party shall terminate this Agreement in accordance with the provisions hereof, such party shall not be liable to the other party on account of such termination or for any other matter or thing arising therefrom. Termination shall in no way effect Excitica’s obligations with respect to any indebtedness Excitica then owes to Publisher.

 

6.3 Insolvency.      If either party ceases to function as a going concern, or a receiver for it is appointed or applied for, or a petition under the federal bankruptcy or corporate reorganization acts is filed by or against it, or it makes an assignment for the benefits of creditors, either party upon five days written notice, sent via certified mail, to the other party may terminate this Agreement, but such termination shall be without prejudice to the rights of the parties with respect to any Title already sold to users.

 

SECTION 7. INDEMNIFICATION

 

7.1 Mutual Indemnification.      Each party (“Indemnifying Party”) agrees to defend, indemnify and hold harmless the other party (“Indemnified Party”) and their respective officers, directors and employees, from and against any and all claims, demands, suits, actions, proceedings, causes of action and/or liability, of any kind whatsoever, for damages, losses and expenses (including reasonable attorney’s fees and allocable costs of in-house counsel), resulting from (i) damages to persons or property, personal injury or death caused by the negligent acts of omissions of the Indemnifying Party arising in connection with this Agreement; (ii) any and all breaches by the Indemnifying Party of any representations, covenants, terms and/or warranties set forth herein; and (iii) any claim that the Indemnifying Party in the performance of its commitments here under has infringes, violated or misappropriated any third party’s right, including, without limitation, any Intellectual Property Right.

 

7.2 Indemnification Procedure.      A party claiming indemnification hereunder will promptly give the Indemnifying Party written notice of all claims, via certified mail. The Indemnified Party shall not make any admission against the Indemnifying Party’s interest shall not settle any claims without the Indemnifying Party’s written prior consent. The Indemnified Party shall provide reasonable cooperation in the investigation and defense of the claim and permit the Indemnifying Party, at its expense, to defend the claim with the legal counsel of its choice. The Indemnifying Party shall pay all reasonable costs, damages and expenses, including but not limited to, reasonable legal fees and costs awarded against or otherwise incurred by or in connection with or arising from such claim.

 

SECTION 8. LIMITATION OF LIABILITY

 

EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, EXCITICA SHALL NOT BE LAIBLE TO PUBLISHER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES INCLUDING, WITHOUT LIMITAION, LOSS OF ANTICIPATED PROFITS OR LOSS OF REVENUE OR DATE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, RESULTING FROM ANY USE ORDER RELATED HERETO, OR ARISING OUT OF OR IN CONNECTION WITH ANY PERFORMACE, NONPERFORMANCE, OR BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF EXCITICA HAD BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.

 

NEITHER PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL EXCEED THE AMOUNTS PAID BY EXCITICA TO PUBLISHER HEREUNDER.

 

SECTION 9. GENERAL PROVISIONS

 

9.1 Force Majeure.      Neither party shall be liable to the other party under this Agreement for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from any cause(s) beyond said party’s control, including without limitation, labor disputes, strikes, acts of God, floods, fire, lightning, utility or communications failures, earthquakes, vandalism, war, acts of terrorism, riots, insurrections, embargoes, hacking, law, regulations or orders of any governmental entity, electrical or computer failure, carrier or agent Excitica may use, systems, telecommunications companies and other entities of similar purpose.

 

9.2 Governing Law and Exclusive Jurisdiction and Venue.      This Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan. Any legal action between the parties herego, and/or arising out of and/or concerning this Agreement in any manner, shall be brought in the State of Michigan, in Alpena County, Michigan, only if and where applicable law grants exclusive jurisdiction in the federal courts. In any event that an action or claim arises outside of the exclusive jurisdiction named herein, the parties agree to initiate, consent to and/or cooperate with any and all efforts to remove the matter to the exclusive jurisdiction names herein or otherwise take any and all reasonable actions to achieve the objectives of this provision.

 

9.3 Entire Agreement.      This Agreement constitutes the entire Agreement and understanding of the parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written. This Agreement bay be amended or modified only by subsequent Agreement in writing signed by each party and may not be modified by course of conduct.

 

9.4 Assignment.      This Agreement may not be assigned by either party in whole or in part, without the other party’s prior written consent.

 

9.5 Waiver and Severability.      If any provision of this Agreement shall be declared invalid or unenforceable under applicable law, said provision shall be ineffective only to the extent of such declaration and shall not affect the remaining provisions in this Agreement. The failure of either party to enforce at any time any of the provisions hereof shall not be construed to be a waiver of such provisions or of the right of the said party thereafter to enforce any such provisions.

 

9.6 No Third Party Beneficiaries.      No provision of this Agreement provides any person or entity not party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

 

9.7 Independent Contractor.      Excitica is an independent contractor and is not Publisher’s agent or representative for any purpose. Nothing herein shall be construed in such a manner so as to constitute Excitica as an agent or representative of Publisher or a joint venture. Excitica shall not make any warranty or representation or incur any obligation, liability or indebtedness whatsoever in Publisher’s behalf.

 

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