SMB Books Reseller Membership Agreement
Updated October 2007
Note to Authors/Publishers/Distributors:
This is a Draft. This is not the final Agreement.
If you agree to these terms, please note that they will change and that your continued participation constitutes your agreement to the new terms.
This Agreement contains the terms and conditions for participation in the SMB Books Reseller program.
1. General Terms
In this Agreement, "we", "our", "us", "SMB Books", and "SMBBooks.com" mean SMB Books, a subsidiary of Great Little Book Publishing Co., Inc., and "you" means you or your organization. "Product" means any product that you agree to resell through the SMB Books Reseller Program. The SMB Books Reseller Program is a very simple reseller program. We purchase products from you at a discount and sell them to the public. Your participation in The SMB Books Reseller Program is governed by this Membership Agreement, the Rules of Engagement, and any terms, conditions, policies, guidelines, and other information on the SMBBooks.com website, each of which may be modified from time to time. In the event of any conflicts between any of this information, the terms of this Agreement control your participation.
2. Scope
SMBBooks.com may purchase Products from you at the terms stated in this agreement and sell or otherwise dispose of the Products through any website, seminar, event, give-away, or other means deemed appropriate by SMB Books. SMB Books may advertise or merchandise the Products as we see fit. We will determine, at our sole discretion, the price at which we sell your Products to customers.
3. Enrollment in the Program
To enroll in the Program, you must submit a complete Program application, available online at www.smb-books.com and request that at least one Product be submitted for our Editorial Board to review. Participation in the SMB Books Reseller Program is not automatic and acceptance of any product is subject to review by our Editorial Board.
4. Membership Fee
We charge a non-refundable one-time enrollment fee of $49.00 for the SMB Books Reseller Program. You may pay this by credit card, check, or other means approved by SMB Books. If your membership is canceled or terminated, or if this Agreement is otherwise terminated for any reason, you will not be entitled to any refund of the annual membership fee.
5. Risk of Loss
The risk of loss for each Product will transfer to us only when we accept the Product. You will be solely responsible for any loss of or damage to Product units that occurs prior to such acceptance. Once we take possession of a product that we have ordered, we will follow the terms of our purchase agreement. We will not be liable for any product you ship to us that has not been ordered, even if we accept shipment of such product. In all cases, our liability for products in our possession is limited to the amounts we agreed to pay you and the exact quantities we ordered.
6. Rejection
We may reject any Product you send to us that is defective, damaged, overage (meaning that we did not order it from you), not properly registered with the SMB Books Reseller Program, lacking a bar code, or otherwise fails to meet the requirements specified in the Rules of Engagement. At our discretion, rejected Products will either be (a) returned to you at your expense, or, (b) destroyed, liquidated or otherwise disposed of without compensation to you.
7. Purchase and Payment
We may from time to time submit a purchase order for your Product. Legal title to each unit of Product automatically transfers to us at the time we accept delivery of it from you. We pay for all unit purchased on terms of 30 days, in arrears. Because you can easily track all shipments to us, and you can consider all such Products to be "sold" when you ship them to us, we do not provide inventory information.
8. Customer Returns to Us
We retain ownership of Products that are returned by our customers, and we may store those Products in our company-owned inventory. We reserve the right to fulfill customer orders for Products from our inventory of returned Products before we purchase or order additional Products from you.
9. Limited License Grant to Descriptive Materials
You grant to SMBBooks.com a royalty-free, nonexclusive, worldwide, perpetual, irrevocable right and license to (a) use, reproduce, perform, display, distribute and prepare derivative works from the Descriptive Materials (defined below).
"Descriptive Materials" means all available information about each Product, including without limitation artwork and text for the packaging (including for example, cover, jacket, jacket flaps, spine and front and back matter); promotional photographs and descriptions, blurbs, author bios, Library of Congress information, title page information, tables of contents, indices, complete Product descriptions, reviews and any other materials concerning the Product. Aside from those portions of each Product identified in the preceding sentence, for the purposes of this Agreement, Descriptive Materials does not include the internal content contained in the Products, such as the text of a book or the recording or musical compositions contained within a CD.
10. License; Representation and Warranties
You represent and warrant to us that (a) you have full authority to grant the licenses and permission described in this Agreement; (b) you have valid legal title to all Products and all rights necessary to distribute the Products and to otherwise perform this Agreement; (c) your sale of Products to us, and our promotion, distribution, and resale of them, will not violate any contract by which you are bound or any applicable law or regulation; (d) you will deliver all Products to us in new, merchantable condition; and (e) the Products, and our promotion, distribution, and resale of them, will not violate or misappropriate any copyright, trademark or other intellectual property or other rights of any third party. At our option, and at your cost, you will replace or accept the return of any Product that does not comply with these representations and warranties.
11. Indemnification
You indemnify, defend, and hold harmless SMBBooks.com, its affiliated companies, and their respective officers, directors, employees, and agents against any claim, loss, damage, judgment, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) arising from or related to (a) the Products; (b) your alleged breach of any representations or warranty contained in this Agreement; or (c) any content you provide (collectively, "Claims"). You will use counsel reasonably satisfactory to us to defend each Claim. If at any time we reasonably determine that any Claim might adversely affect us, we may take control of the defense at your reasonable expense and without affecting your indemnification and hold harmless obligations. You may not consent to the entry of any judgment or enter into any settlement without our prior written consent, which we will not unreasonably withhold.
12. Revisions; Continued Use
We reserve the right to change any of the terms and conditions contained in this Agreement, including the Rules of Engagement, policies, guidelines, or other information on our web sites, at any time and in our sole discretion. YOUR CONTINUED MEMBERSHIP IN THE SMB BOOKS RESELLER PROGRAM AFTER THE POSTING OF ANY CHANGES CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, YOU MUST TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREIN.
13. Term
a. Commencement. The term of this Agreement begins when you receive your notice of acceptance into the SMB Books Reseller Program and ends when terminated by either party.
b. Termination. Either party may terminate this Agreement at any time, with or without cause, by giving thirty (30) days written notice of such termination. Both parties must continue to fulfill all obligation of this Agreement up to the effective date of termination.
c. Following any termination, SMBBooks.com will have the option to return all products purchased from you within the last sixty (60) days from the date of the written termination notice. Such products will be offered at 90% of the price we paid for them.
d. All provisions that reasonably may be construed as surviving the expiration or termination of this Agreement will survive.
14. Relationship of Parties
You and SMBBooks.com are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative, or employment relationship, or any kind of exclusive relationship, between the parties. We reserve the right to purchase items from other sources, even if they are similar or identical to your Products, and the right to fulfill customer orders from inventory purchased outside of the SMB Books Reseller Program, whether from you or from third parties.
15. Limitation of Liability; Disclaimers
We are not liable for indirect, special, or consequential damages or any loss of revenue, profits, or data arising in connection with this Agreement or the SMB Books Reseller Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the SMB Books Reseller Program will not exceed, at any time, the total amounts paid to you under this Agreement during the previous 3-month period.
16. Taxes
You are responsible for properly reporting all amounts paid to you through this program to the appropriate taxing agencies, including but not limited to local, state, federal, and special districts. You are responsible for all taxes on amounts paid to you. All such taxes are your responsibility and for your account.
17. Miscellaneous
a. This Agreement is governed by the laws of the State of California.
b. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns.
c. We will send all notices and other communication to you at the address you listed in your the SMB Books Reseller Program application. You must send all notices and other communication relating to the SMB Books Reseller Program to us by using the Contact form on the www.smb-books.com web site, or by our mailing address, found on the www.smb-books.com web site.
d. This Agreement represents the entire agreement between the parties with respect to the SMB Books Reseller Program and supersedes all other oral or written agreements and understandings.
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