Terms of Service
Gatekeeper Press Nonexclusive Distribution Agreement (“Agreement”)
THIS AGREEMENT, WHEN ACCEPTED BY YOU AFTER YOU CLICK “I AGREE” WILL CREATE A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND GATEKEEPER PRESS, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN AUTHOR, WRITER, PUBLISHER, OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE AUTHOR, WRITER, PUBLISHER, OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE ON WHICH YOU CLICK THE “I AGREE” BUTTON BELOW.
Gatekeeper Press (referred to in this Agreement as “us,” “we,” “our,” and “Gatekeeper”) reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Site. In the event of substantive changes to the terms of this Agreement, You will be notified by email. If any modification is unacceptable to You, your only recourse is to discontinue use of our services. Your continued use of our services, following posting of a change notice or new agreement on the Site, will constitute your binding acceptance of the changes.
We reserve the right to add, delete and/or modify any of the terms and conditions contained in this Agreement pursuant to the provisions of Section 10 below. Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and Gatekeeper that arose prior to the date of such modification.
YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH GATEKEEPER FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.
The following capitalized terms shall have the following meanings for purposes of this Agreement:
(a) “Author Manager” means a U.S.-based publishing professional assigned to you who coordinates all communications with our eBook converters, cover designers, paperback-layout specialists, printers and editors.
(b) “Authorized Artwork” means any artwork relating to Your Authorized Content that you provide to us. All such artwork will be deemed to have been properly cleared and/or licensed by you for all purposes, unless you provide us with written notice to the contrary.
(c) “Copyright Management Information” means the digital information conveying information regarding Digital Literature Products, such as your name, the title of the applicable published work and the publishing Gatekeeper name.
(d) “Digital Literature Product” means a copy or copies of Your Authorized Content in digital and electronic form.
(e) “Licensee” means any third party licensee, by way of example, Apple iBookstore, Amazon, or others that we may authorize to carry out the marketing, distribution and sale or other use of Your Authorized Content and Authorized Artwork pursuant to the terms of this Agreement.
(f) “Territory” means the world, or more limited territories, if you so choose.
(g) “Your Authorized Content” means print, text, associated artwork and underlying works that you have designated for digital distribution by us. Any such print, text, associated artwork and underlying works must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you.
You hereby appoint us as your authorized representative for the sale and other distribution of Your Authorized Content as described below. While distributing Your Authorized Content through Gatekeeper is nonexclusive, the rights granted by you to us under this Digital Print Distribution Agreement to distribute to any Gatekeeper partners and affiliates are exclusive, because online retailers do not want to receive the same content delivered by multiple companies. Accordingly, you hereby grant to us the exclusive right with the digital partners and affiliates to which you opt in, and to our licensees (herein each a “Licensee”) the non-exclusive right, during the Term and throughout the Territory, to:
(a) Reproduce, format, and convert Your Authorized Content into Digital Literature Products;
(b) Distribute and make available, for promotional purposes and without remuneration to You, portions of Your Authorized Content (“Samples”) in any form of media, including but not limited to digital media, printed media and audio, to promote the license, sale and distribution of Digital Literature Products;
(c) Promote, sell, license, distribute, and deliver Digital Literature Products and associated metadata to purchasers and resellers who may use such Digital Literature Products in accordance with usage rules approved by us;
(d) Use and authorize others to license the use of and sale of Your Authorized Content in connection with all manner of eBook, printed book, and audiobook services, such as, but not limited to, sales or licenses of Digital Literature Products as digital files, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices);
(e) Make available and authorize Licensees to make available Your Authorized Content in all territories in which Licensees deliver, distribute, or sell digital literature including audiobooks or electronic Books.
(f) Use so-called “kiosks” to distribute, market and promote Digital Literature Products, including, without limitation, by allowing a copy of a Digital Literature Product to be transferred to personal devices;
(g) Use and authorize others to make non-permanent copies of Digital Literature Products to be distributed as so-called “conditional” downloads, whether tethered to a device, time-limited, use-limited or otherwise;
(h) Allow and authorize others to allow limited sharing of Digital Literature Product between existing and potential customers for promotional purposes;
(i) Use and distribute Copyright Management Information as embodied in Digital Literature Products;
(j) Display and electronically fulfill and deliver Authorized Artwork used in connection with Your Authorized Content for personal use, solely in conjunction with the applicable Digital Literature Product;
(k) Use Your Authorized Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;
(l) Authorize Licensees to remove or modify the cover artwork, metadata and product description you provide for your Digital Literature Products for any reason without notification.
(m) Make necessary changes to this agreement to comply with Licensees’ rules and regulations not mentioned above; and
(n) Authorize our Licensees to perform any one or more of the activities specified above.
The term of this Agreement (the “Term”) will commence on the Effective Date and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice, which notice, if sent by (a)Gatekeeper, may be sent to you at the last e-mail address you provided to Gatekeeper and (b) you to Gatekeeper, must be sent to your Author Manager’s email address or to info@Gatekeeperpress.com with all book titles for which you are requesting termination. Any termination notice provided by you pursuant to this section shall be permanent and irreversible. Notwithstanding anything to the contrary herein, Gatekeeper may at any time in its sole discretion, with or without notice to you: (i) suspend or limit your access to your use of the Services.
4) Payments to You
(a) Royalties: For content resold through our distribution partner network Licensees we will pay you an amount equal to one-hundred percent (100%) of the amount that we receive from Licensees for the sale or other licensed uses of your Digital Literature Products (“License Fee”) net of Sales Tax.
(b) To the extent that you owe any amounts to Gatekeeper as a consequence of this agreement, Gatekeeper shall have the right to deduct all or a portion of such amounts from payments to you.
(c) In the event that Gatekeeper overpays royalties, such as in cases when fraudulent or unauthorized purchases are charged back to Gatekeeper after payments are made, then Gatekeeper will deduct the funds owed from monies payable to you hereunder. If the amount owed exceeds your accrued monies, you agree to remit a payment back to Gatekeeper within 20 days of notification to adjust the overpayment.
(d) In the event that Gatekeeper receives notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with your warranties and representations, or in the event that Gatekeeper has, in its reasonable business judgment, reason to suspect that your Account has been subjected to and/or involved in fraudulent activities, Gatekeeper reserves the right to discontinue posting of monies to your Account and block your ability to otherwise withdraw funds therefrom, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates’ actions or omissions, any costs incurred by Gatekeeper (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by Gatekeeper from any monies otherwise payable to you hereunder. Certain of Gatekeeper’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.
(e) In the event that Gatekeeper is presented with a claim of breach of copyright, failure to comply with any third party license requirement or other breach of any of your warranties hereunder, and in its reasonable business judgment is compelled to engage an attorney to respond to such claim, Gatekeeper shall – in its sole discretion – have the right to deduct from your Account or charge your credit card up to $300 to offset the costs of associated legal fees.
(f) Payments will be made to you monthly via PayPal or check within 60 days from the end of each month. Such payment will constitute full and adequate consideration for all rights granted, and all obligations undertaken, by you in this Agreement.
(g) We will maintain Books and records which report the sale or other licensed uses of your Digital Literature Products. You may, but not more than once a year, at your own expense, engage a Certified Public Accountant (“CPA”) to examine those Books and records, as provided in this Section 4(a) and 4(b), only, but not if (s)he or his/her firm has begun an examination of our Books and records for anyone else, unless the examination has been concluded and any applicable audit issues have been resolved. Such Certified Public Accountant will act only under an acceptable confidentiality agreement, which provides that any information derived from such audit or examination will not be knowingly released, divulged or published to any person, firm or corporation, other than to you or to a judicial or administrative body in connection with any proceeding relating to this Agreement. Your CPA may make those examinations only for the purpose of verifying the accuracy of the statements sent to you. All such examinations will be in accordance with GAAP procedures and regulations. Your CPA may make such an examination for a particular statement only once, and only within one (1) year after the date we send you that statement. Your CPA may make such an examination only during our usual business hours, and at the place where we keep the Books and records to be examined. If you wish to make an examination, you will be required to notify us at least thirty (30) days before the date when you plan to begin it. If your examination has not been completed within one (1) month from the time you begin it, we may require you to terminate it on seven (7) days’ notice to you at any time; we will not be required to permit you to continue the examination after the end of that seven (7) day period. Your CPA will not be entitled to examine any other records that do not specifically report sales or other licensed uses of the Digital Literature Products. (i) If you have any objections to a statement, you will give us specific notice of that objection and your reasons for it within one (1) year after the date when we are required to send you that statement. Each statement will become conclusively binding on you at the end of that one (1) year period, and you will no longer have any right to make any other objections to it. You will not have the right to sue us in connection with any statement, or to sue us for sales and licenses during the period a statement covers, unless you commence the suit within that one (1) year period. If you commence suit on any controversy or claim concerning statements rendered to you under this Agreement in a court of competent jurisdiction, the scope of the proceeding will be limited to determination of the amount of the Digital Literature Fees due for the accounting periods concerned, and the court will have no authority to consider any other issues or award any relief except recovery of any Digital Literature Fees found owing. Your recovery of any such royalties will be the sole remedy available to you by reason of any claim related to our statements.
(h) Tax Information. Gatekeeper will use its reasonable efforts to collect sales and other taxes owed on the sale of Your Authorized Content (“Sales Tax”), and to remit such Sales Tax on your behalf to relevant government authorities. Notwithstanding the above, in all events, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax owed in connection with the sale or distribution of Your Authorized Content pursuant to this Agreement, and you hereby indemnify Gatekeeper for any Sales Tax that may be owed in addition to those amounts collected and remitted on your behalf by Gatekeeper.
5) Your Obligations
You or a licensee (on your behalf) will obtain and pay for any and all clearances or licenses required in the Territory (or any portion thereof) for the use of Your Authorized Content, and Authorized Artwork and metadata as intended by this Agreement. Specifically, and without limiting the generality of the foregoing, you or a licensee on your behalf will be responsible for and shall pay (i) any royalties and other sums due to writers, authors, co-authors, artists, copyright owners and co-owners, publishers and any other publishing royalty participants from sales or other uses of Digital Literature Products, (ii) all payments that may be required under any collective bargaining agreements applicable to you or any third party, and (iii) any other royalties, fees and/or sums payable with respect to Your Authorized Content, and Authorized Artwork, metadata or other materials provided by you to us.
6) Payments to Gatekeeper
In consideration of the Services rendered hereunder, you shall pay to Gatekeeper the fees listed below, which may be amended from time to time by Gatekeeper with notice to you. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your Gatekeeper Account by you or anyone else using your Account. If you do not provide a valid payment method your Services may be disconnected or interrupted.
- eBook Distribution Only: $249
- eBook Conversion and Distribution: $299
- Paperback Distribution Only: $299
- Paperback Design & Distribution: $399 (books exceeding 200 designed pages will incur an additional $0.99 fee for each page beyond 200)
- Hardcover Distribution Only: $299
- Hardcover Design & Distribution: $399 (books exceeding 200 designed pages will incur an additional $0.99 fee for each page beyond 200)
- Printing Cost Per Book: Contingent on page count and whether the interior is black and white or color. Click here for estimated printing costs. (http://www.gatekeeperpress.com/printing-costs/)
- Shipping Cost Per Book: Contingent on quantity ordered and destination. Click here for Shipping costs.(http://www.gatekeeperpress.com/printing-costs/)
- Content changes after submitting manuscript:
- 1-10 changes – $40
- 11-25 changes – $65
- 26-50 changes – $90
- Metadata changes after submitting manuscript: One free batch of metadata changes per calendar year. $25 for subsequent batches.
- Cover Design (front cover): $239
- Cover Design (front cover, back cover, & spine): $299
- Cover Revisions: First set of revisions free. $25 for each set of revisions beyond that.
- Line Edit/Proofread $7.50/1,000 words
- Developmental Edit: $12.50/1,000 words
- ISBN: $15
- Barcode: $9
7) Right to Withdraw Material
You have the right, at any time during the Term, to withdraw your permission for the sale or other uses of Your Authorized Content and Authorized Artwork, upon written notice to us (“Withdrawal”). Within 5 business days following our receipt of your notice of Withdrawal, we will advise our Licensees that they are no longer authorized to offer the sale or other use of Your Authorized Content or Authorized Artwork. Sending of your notice of Withdrawal will not limit your responsibility for sales and other uses of Your Authorized Content and/or Authorized Artwork that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired Your Authorized Content or Authorized Artwork. Gatekeeper is not responsible for, and has no liability for, any delays of our Licensees in removing Your Authorized Content and Authorized Artwork.
8) Names and Likenesses; Promotional Use and Opportunities
(a) Names and Likenesses. You hereby grant to us, during the Term, the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning any writers, authors, artists, or publishers, as well as Book or publication name, and Authorized Artwork, in any marketing materials for the sale, promotion and advertising of the applicable Digital Literature Product, which is offered for sale or other use under the terms of this Agreement.
(b) Promotion. You hereby grant to us and our Licensees the right to market, promote and advertise the Digital Literature Products as available for purchase or license, as we and they determine in our and their discretion.
Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, all right, title and interest in and to (i) Your Authorized Content and Authorized Artwork, (ii) the Digital Literature Products, (iii) the Samples, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you, will be yours.
10) Modification, Termination and Effect of Termination
(a) We reserve the right to change, modify, add to, or remove all or part of this Agreement, in our sole discretion. Notice of any such change will be sent to you by email at least fifteen (15) days prior to its effective date. In the event that you do not consent to any such proposed changes, your sole recourse shall be to terminate the Term of this Agreement, by notice to us as provided above, and your failure to do so within fifteen (15) days of the date of any such email from us to you shall constitute your acceptance of such changes. To terminate your Agreement, you must send a notice of Termination to your Author Manager’s email address or to info@GatekeeperPress.com and include in the subject line of your e-mail “Termination of Digital Print Distribution Agreement.”
(b) In the event that you shall materially breach this Agreement, including by any failure to pay any amounts owed to Gatekeeper as a consequence of this agreement, then, in any such event, Gatekeeper shall have the right upon notice in writing to You to terminate the Term hereof with immediate effect. No election by Gatekeeper to waive its right of termination in any particular instance shall constitute a waiver of Gatekeeper’s rights to do so in any other instance.
(c) The expiration or termination of the Term will not relieve either you or us from our respective obligations incurred prior to or during the Term. Accordingly, applicable provisions of this Agreement will continue to apply even after the expiration of the Term.
11) Modification, Termination and Effect of Termination
(a) Monitoring. Gatekeeper does not control Your Authorized Content and does not have any obligation to monitor Your Authorized Content for any purpose. Gatekeeper may choose, in its sole discretion, to monitor, review or otherwise access some or all of Your Authorized Content, but by doing so Gatekeeper assumes no responsibility for Your Authorized Content, no obligation to modify or remove any inappropriate elements of Your Authorized Content, or to monitor, review or otherwise access any other author’s content or artwork.
(b) Right of Removal. Gatekeeper reserves the right, in its sole and absolute discretion, to remove any of Your Authorized Content from sale if such content: (i) is patently offensive, pornographic or defamatory; (ii) is the subject of a dispute between you or us and a third party; (iii) is content to which you cannot document your rights therein upon Gatekeeper’s request; (iv) violates the intellectual property rights or other protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in Gatekeeper’s sole and absolute judgment is necessary to protect the business interests of Gatekeeper and any of its business partners or Licensees. Our partners, retailers and Licensees may reject content for any reason (including but not limited to racist or sexual content, hyperlinks, SEO spam, Public Domain material or infringing/offensive/prohibited images or content). Gatekeeper’s service has been rendered once we have formatted and delivered the content, and if your content is rejected by any partner for any reason, Gatekeeper will have no liability to you, and Gatekeeper will not offer any refund or credit for any services (including but not limited to conversion, formatting, cover design, and distribution). Gatekeeper may also remove Your Authorized Content from sale if you are abusive or rude or provide false or intentionally misleading information to any Gatekeeper employees or agents. Gatekeeper shall have no liability to you for the removal of any of Your Authorized Content from the Website or any Licensee website or service. The removal of any of Your Authorized Content shall not relieve Gatekeeper of the obligation to pay you any royalties that may have accrued prior to the removal of Your Authorized Content.
(c) No Termination Due to Removal. This Agreement shall not be terminated automatically by Gatekeeper’s removal of Your Authorized Content from the Website or Licensee’s websites or services. In order for you to terminate this Agreement following the removal of any of Your Authorized Content, you must send Gatekeeper a notice of Termination.
12) Additional Representations and Warranties of the Parties
(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:
(i) Is authorized to enter into this Agreement on the terms and conditions set forth herein.
(ii) Will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.
(iii) Shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.
(b) Representations and Warranties by You. You represent and warrant to Gatekeeper that:
(i) You have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to Your Authorized Content or Authorized Artwork, and metadata. For the avoidance of doubt, if you are acting on behalf of an author, writer, publisher, or corporation, you hereby represent and warrant to Gatekeeper that you are fully authorized to enter into this Agreement on behalf of such author, writer, publisher, or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.
(ii) You own or control the necessary rights in order to make the grant of rights, licenses and permissions herein, that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within Your Authorized Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in Your Authorized Content) as contemplated by this Agreement. Furthermore, you represent that the exercise of such rights, licenses and permissions by us and our Licensees shall not violate or infringe the rights of any third party.
(iii) Your Authorized Content does not plagiarize or pirate any other work or infringe upon any copyright, trademark or other proprietary right.
(iv) Your Authorized Content does not contain SEO keyword spam, either in your manuscript or your metadata tags.
(v) Your Authorized Content does not contain multiple hyperlinks to advertisements or affiliate marketing pages.
(vi) Your Authorized Content does not contain any advertisements of content that is primarily intended to advertise or promote products of services.
(vii) Your Authorized Content does not violate any right of privacy that is libelous or violate any personal right or other right of any kind of any person or entity.
(viii) Your Authorized Content does not violate state and federal laws or advocate illegal activities.
(ix) Your Authorized Content does not advocate hateful, discriminatory or racist views or actions toward others.
(x) Any and all instruction, material, or advice contained in Your Authorized Content is not likely to result in injury and Your Authorized Content includes appropriate warning and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice.
(xi) Your Authorized Content is not a public domain work (unless you are the true author) and is not sourced or copied, either in part or in entirety, from commercial services, articles, or information sources which have been licensed to others.
(xii) You and we represent and warrant that we will not act in any manner which conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by you or us will interfere with our performance of our obligations under this Agreement.
(xiii) Each party represents and warrants that it shall perform its obligations hereunder in full compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.
(xiv) We make no guarantees whatsoever about there being any minimum sales or uses of any Digital Literature Products.
13) No Representations and Warranties With Respect to Sales and Distributions
Gatekeeper makes no guarantees regarding the minimum number of unit sales or uses of Your Authorized Content. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with Gatekeeper for the sale, distribution or licensed use of Your Authorized Content, including by paying the royalties they owe us for the distribution of Your Authorized Content. If a Licensee refuses to pay us for the use of Your Authorized Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sale, distribution or licensed use of Your Authorized Content if such third party fails or refuses to pay such amounts to Gatekeeper upon Gatekeeper’s request.
(a) Indemnification. You hereby indemnify, save, and hold us harmless from any and all damages, claims, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims”) arising out of or connected with any claim, demand, or action which is inconsistent with any of the warranties, representations, covenants or agreements made by you in this Agreement. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Pending the determination of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this paragraph.
(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by Gatekeeper or imposes any conditions or obligations on Gatekeeper other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe Gatekeeper an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GATEKEEPER AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GATEKEEPER OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. GATEKEEPER AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY GATEKEEPER, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER YOUR AUTHORIZED CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
16) Limitation of Liability; Basis of the Bargain
(a) GATEKEEPER SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. GATEKEEPER SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY GATEKEEPER OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF YOUR AUTHORIZED CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH GATEKEEPER OR OTHERWISE. GATEKEEPER’S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY GATEKEEPER FOR THE DISTRIBUTION OR LICENSING OF YOUR AUTHORIZED CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST GATEKEEPER.
(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND GATEKEEPER, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND GATEKEEPER, GATEKEEPER’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT GATEKEEPER WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.
17) General Provisions
(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture, and neither party is the other’s agent, partner, or employee.
(b) Entire Agreement. This Agreement contains the entire understanding of the parties relating to the subject matter hereof. This Agreement supersedes all previous agreements or arrangements between us pertaining to the creation and digital distribution of content, provided that if you previously entered into a digital distribution agreement with us in the past, and elected any options, those options will remain in place under this Agreement. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.
(c) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
(d) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by you upon registration with the Gatekeeper Site, or as properly updated.
(e) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the laws of the State of Ohio applicable to agreements entered into and to be wholly performed in Ohio, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the TOS.
(f) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.
(g) Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
(h) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(i) Assignment. Gatekeeper may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining Gatekeeper’s prior written consent.