DNAML Distributor Agreement
1.1
Your use of DNAML’s Titles, software, services and
websites (referred to collectively as the DNAML
System in this document and excluding any services provided to You by DNAML
under a separate written agreement) is subject to the terms of a legal agreement
between You and DNAML. DNAML means
DNAML Pty
Ltd, ABN 65 095 281 173, an Australian corporation, whose principal place of
business is Suite 4, Level 4, 189 Kent Street, Sydney, New South Wales 2000
Australia. This document
explains how the agreement is made up, and sets out some of the terms of that
agreement.
1.2
Unless otherwise agreed in writing with DNAML, your
agreement with DNAML will always include, at a minimum, the terms and
conditions set out in this document, including the End User License Terms and Conditions. These are referred to below as
the “Universal Terms”.
1.3
Your agreement with DNAML will also include the terms
of any legal notices applicable to the DNAML System, in addition to the
Universal Terms. All of these are referred to below as the “Additional Terms”.
Where Additional Terms apply to the DNAML System, these will be accessible for You
to read either within, or through Your use of, the DNAML System.
1.4
The Universal Terms, together with the Additional
Terms, form a legally binding agreement between You and DNAML in relation to Your
use of the DNAML System. It is important that You take the time to read them carefully.
Collectively, this legal agreement is referred to below as the Terms.
2.1
In order to use the DNAML System, You must first
agree to the Terms. You may not use the DNAML System if You do not accept the
Terms.
2.2
You can accept the Terms by:
(a)
clicking to accept or agree to the Terms, where
this option is made available to You by DNAML in the user interface for any DNAML
System and submitting an application for approval by DNAML; or
(b)
by actually using the DNAML System. In this case, You
understand and agree that DNAML will treat Your use of the DNAML System as
acceptance of the Terms from that point onwards; and
(c)
in either instance, providing to DNAML on request
any additional information in any media and receiving from DNAML email notice of
its acceptance of Your application.
2.3
You may not use the DNAML System and may not accept
the Terms if:
(a)
You are not of legal age to form a binding contract
with DNAML in the country in which You are resident or located; or
(b)
You are a person barred from receiving the DNAML System
under any relevant laws of any country including the country in which You are
resident or located.
3.1
In these Terms the following words have the meaning
next to them.
Charge-back has the meaning in clause
8.1.
Collateral
Materials means Seller’s
advertising, marketing or promotional materials made available by the Seller to
use within the DNAML System.
Compensation means monetary payments
that a Distributor earns from a Seller in connection with Sales made in
accordance with the Terms.
Distributor means You and DNAML resellers,
distributors, subsidiaries and affiliated legal entities around the world
including those specified in the DNL DRM Administration System.
DNAML Software has the meaning in clause
4.1.
DNAML System has the meaning in clauses
1.1 and 4.1.
DNL DRM
Administration System means an online administration system which allows
Sellers and Distributors to manage Titles within the DNAML System using the
features provided
eBook Services has the meaning in clause
4.2.
End User means all actual or
prospective purchasers who acquire use and possession of the Titles through the
DNAML System from any of DNAML's publishers, authors or licensees or any other
legal person claiming a licence in the Titles pursuant to an End User Licence
Agreement.
Link means an Internet
hyperlink provided by You or DNAML that takes an End User to a Seller's Online
Marketplace or the DNL DRM Administration System and identifies You as the
referral source for that End User’s presence on the DNL DRM Administration
System.
Market means to advertise,
promote, sell and distribute.
Online
Author/Publisher Licence Agreement means the agreement between DNAML and Seller for
provision of eBook use of the DNAML System for the Seller’s Titles, which may impose
on you Seller-specific special terms.
Online
Marketplace means the eCommerce platform of Sellers.
Password is a combination of
alphanumeric and keyboard symbols known only to a Distributor and DNAML which
DNAML uses in combination with a User Name to identify a Distributor and
prevent unauthorised access to the DNL DRM Administration System.
Proprietary
Information means software, technology and documentation that contain confidential,
trade secret information, copyright and other intellectual property.
Sale is the sale of a Seller's Titles
to an End User where the End User was referred to that Seller through a Link.
Seller means a publisher or owner
of content and other intellectual property or Titles who uses the DNAML System.
Seller’s Payment means the Digital List
Price specified in the DNL DRM Administration System for Titles sold by You after deduction of agreed commissions
and expenses. DNAML may add to the
Digital List Price and charge to End Users, and may pay to the relevant taxing
authority, any applicable sales or transaction taxes and charges chargeable with
respect to the sales of Sellers’ Titles.
Titles means Seller’s content or
other intellectual property converted into eBooks using the DNAML Software.
User Name is a shortened
alphabetical means of identifying a Distributor where DNAML uses in combination
with a Password to identify a Distributor and prevent unauthorised access to
the DNAML Online Marketplace.
3.2
In
the Terms, unless a contrary intention appears:
(a)
All capitalised words in Terms are defined terms;
(b)
Payments are to be calculated using the currency or
currencies nominated in the DNL DRM Administration System unless specified
otherwise in the Terms;
(c)
The headings or lack of headings of the sections
and subsections of the Terms have been assigned for convenience only and do not
limit, define or affect the Terms;
(d)
Singular
words include the plural and the other way round;
(e)
A
reference to a person includes a natural person, corporation, incorporated
association, statutory corporation, and any other type of legal entity;
(f)
The
word “including” means “including but not limited to”;
(g)
Words
and expressions defined in the Copyright Act and not separately defined in this
Agreement have the meaning given to them in that Act;
(h)
Schedules
and Annexures to the Terms form a part of the Terms; and
(i)
The
order of priority of documents is:
(i)
Online
Author/Publisher Licence Agreement;
(ii)
Additional
Terms; and
(iii)
Universal
Terms.
4.1
DNAML owns proprietary eBook software solutions, eBook
security software, an eCommerce system, a distribution system and other
associated digital products, the DNAML
System, which:
(a)
use the DNL file format or DNAML Software, that is powered by the DNL Reader produced using Desktop
Author or other software or upgrades
(b)
offers a protection and security system employed
within the DNL format designed to secure the eBook content called the DNL
Digital Rights Management or DNL
DRM;
(c)
within the DNL DRM, allows an End User to activate
the eBook using the DNL DRM eCommerce module or through key activation; and
(d)
provides an online administration system and a
digital warehouse, the DNL DRM Administration
System, which allows You to manage and sell Your Titles within the DNL DRM
System using the features provided.
4.2
DNAML provides the eBook Services to
Sellers to:
(a)
allow Sellers or other third parties to convert
content or other intellectual property into eBooks and related services;
(b)
register and electronically control the use of the Titles
including to protect against unauthorised access to or use of the Titles;
(c)
market and sell the Titles directly on its Internet
website known as www.dnaml.com and www.eBook.com (or other websites) or by
appointing Distributors such as You;
(d)
enable the sale of the Titles through an eCommerce
system or activation keys and to fulfil the sales by distribution of the Titles
to End Users by the Internet or other similar electronic distribution platform;
and
(e)
pay Sellers’ Payment from the sales of Titles according
to DNAML's fees posted on the DNL DRM Administration System.
4.3
DNAML manages the DNAML System and the Marketing
process in relation to the eBook Services and:
(a)
assists Sellers and You to Market and sell the Titles
and DNAML System;
(b)
processes compensation to You and Seller Payments
to Sellers.
5.1
To be a Seller’s Distributor You must be accepted
by that Seller to Market its Titles by the following process:
(a)
You press the "Titles/Services" button or
equivalent, search for and review the Seller’s Titles You wish to sell, and
then press the "Sell" button or equivalent.
(b)
If Your application is approved by a Seller, then DNAML
will notify You by any means authorised by the Terms, or postings on the DNL
DRM Administration System.
(c)
Seller will agree to You Marketing its Titles as its
agent according to the Terms.
(d)
DNAML may provide Seller with Your contact and
basic account information, including email and mailing addresses, URL,
telephone and fax number.
(e)
Seller may terminate Your right to Market one or
more of its Titles by notifying DNAML through the DNL DRM Administration
System, or if you breach the Terms, or if Seller or DNAML terminates the Online
Author/Publisher Licence Agreement.
5.2
DNAML grants to You, solely for the purpose of Marketing
the Seller, its Titles and the DNAML System, a limited, revocable,
non-exclusive, non-transferable, non-assignable:
(a)
licence to utilise DNAML's System solely for the
purposes of the Terms; and
(b)
licence to communicate and display the Links and
any applicable Collateral Materials in relation to the Titles of each Seller
that appoints You as its Distributor.
5.3
DNAML and Seller reserve all rights in their Proprietary
Information not expressly granted under the Terms. No right or licence is
deemed to be granted to You by implication, estoppel, waiver, course of conduct
or otherwise. You acknowledge that:
(a)
all of DNAML's System including software and
technology is Proprietary Information of DNAML; and
(b)
Seller’s Titles are Proprietary Information of
Seller.
5.4
Subject to the Terms and a valid and concurrently
existing Online Publisher Agreement between DNAML and the Seller of each Title,
DNAML will provide You access to the DNL DRM Administration System to
facilitate the Marketing of Seller's Titles to End Users via the DNAML System
by providing You with:
(a)
real-time online access to the DNAML System for
managing Seller Titles via the DNL DRM Administration System;
(b)
access to a secure, online eCommerce system for
Title order and purchase capabilities for End Users;
(c)
End User credit card transaction processing via the
eCommerce system for purchase of Titles;
(d)
electronic (only) fulfilment of Seller Titles to End
Users via provision of activation keys for eBooks;
(e)
processing of transaction payments to You and
Seller via the eCommerce system;
(f)
providing You (and Seller) online daily, weekly and
monthly sales and distribution reports, and real-time reports of individual Titles
and services sales in standardised report formats only.
(g)
End User technical support directly related to the DNAML
System which includes online order, purchase and fulfilment of Seller Titles
only. DNAML does not provide End User support to You or directly for Seller's Titles;
and
(h)
technical support to You will be provided during
DNAML's normal business hours, from Monday to Friday, 9am to 5pm eastern Australian
time.
5.5
In exercising Your rights under the Terms:
(a)
You will use commercially reasonable efforts to Market
the Seller’s Titles and DNAML's Services and to promote the DNAML System at Your
sole expense.
(b)
You may Market Seller's Titles subject to any
restrictions in the Online Author/Publisher Licence Agreement or these Terms or
notified to You on the DNL DRM Administration System.
(c)
You may post Links on the Seller’s Online
Marketplace to direct an End User to the DNAML System or Seller’s Online
Marketplace so long as You comply with any restrictions and guidelines that a
Seller imposes on the use of Links or Collateral Materials specified on the DNL
DRM Administration System.
(d)
You may provide links to the DNAML websites in
newsgroups, message boards, banner networks, counters, chat rooms, guest books,
Internet relay chat channels, social networking sites or through similar
Internet resources provided You comply with the Terms and any terms and
conditions imposed by those sites.
(e)
You must ensure that all End Users sign the DNAML
End User Agreement, attached as the Annexure.
(f)
Unless expressly prohibited by the Online
Author/Publisher Licence Agreement, these Terms or the DNL DRM Administration
System, You may identify Yourself as representing the Seller to Market the
Titles.
(g)
You will receive Compensation from Sales that are
completed via Your Link to Seller’s Online Marketplace or to the DNL DRM
Administration System on the basis of Sales commissions determined by Sellers
and specified in the DNL DRM Administration System.
5.6
Each of DNAML and the Seller may modify the Online
Author/Publisher Licence Agreement by posting new terms on the DNL DRM Administration
System. The new terms will be effective immediately and will bind You.
5.7
The Titles and the DNAML System contain the Proprietary
Information of DNAML. You agree not to:
(a)
disclose the Proprietary Information;
(b)
directly or indirectly, copy, reproduce,
distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to
be disclosed, reverse engineer or otherwise transfer DNAML's Proprietary
Information to any third party;
(c)
make use of the Proprietary Information other than
for the permitted purposes under the Terms; and,
(d)
disclose DNAML's Proprietary Information to anyone
other than their respective representatives who require this material for
effective performance of the Terms and who have agreed to be bound by the Terms.
This obligation survives termination of the Terms.
5.8
You will have access to the DNL DRM Administration
System for tracking and reporting tools in relation to each Seller’s Titles You
Market and Your Compensation.
5.9
DNAML will issue a User Name and Password to You to
access password protected portions of the DNL DRM Administration System. You
are responsible for:
(a)
all activities conducted and charges made under its
User Name account and Password;
(b)
any unauthorised disclosure, theft or loss of Your Password.
DNAML excludes any liability for Your Password and
User Name being misused or compromised. If You know or suspect that anyone is
using Your User Name or Password, You must give immediate written notice to
DNAML and promptly change both the User Name and Password on the DNL DRM
Administration System.
5.10 You must comply with the
privacy policies posted by both:
(a)
a Seller in its Online Marketplace; and
(b)
DNAML on the DNAML System.
You must develop and post a
privacy policy on its own Online Marketplace which policy is consistent with
the Seller and DNAML policies and compliant with laws in the jurisdiction in
which it operates.
5.11 Distributor will provide
DNAML and DNAML may provide Sellers with the non-personally identifiable
demographic information of visitors to Distributor's Online Marketplace.
6.1
You represent, warrant and covenant to DNAML that in
performing the Terms You will comply with all laws, rules and regulations
applicable to Your business, and You will not:
(a)
make any representations or warranties regarding
Sellers’ Titles beyond those representations or warranties published by the
Sellers;
(b)
interfere with the access of any End User to the Your
website, the Link, or a Sellers' Online Marketplace or any part of the DNAML
System technology or software, nor copy, modify, distribute, display the
foregoing, or engage in any other activities unless permitted under the Terms;
(c)
grant a sub-licence to any person of the rights
granted to You under the Terms;
(d)
use DNAML's or any Seller's trade names, marks or
URLs in any way that would likely cause confusion or an actual or prospective End
User to reasonably believe that You are a Seller or DNAML or You has any
relationship with Seller or DNAML except under the Terms;
(e)
alter any Collateral Materials or other materials
provided to You in connection with the DNAML System without DNAML’s consent;
and must not alter or remove any proprietary notices on these materials; and
(f)
infringe the intellectual property or other rights
of DNAML, a Seller, or any third party, including removing or altering any
intellectual property or other proprietary notices of a Seller from its Titles.
6.2
In Marketing the Titles and performing the Terms
You must not:
(a)
engage in deceptive trade practices;
(b)
engage in spamming, indiscriminate advertising or
sending of unsolicited commercial email or in any unfair, fraudulent or
deceptive trade practices or false advertising including but not limited to
using any device, robot, in-line frame, hidden frame or redirect;
(c)
use third party pop-up or pop-under systems or
services to promote the Titles, Seller or the DNAML System;
(d)
replace, intercept, interfere with, hinder, disrupt
or otherwise alter a End User's access, view or usage of DNAML’s Online
Marketplace, a Link or a Seller's Online Marketplace, including without
limitation any click-through or traffic-based transaction;
(e)
auto-set cookies on a End User's browser;
(f)
collect personally identifiable information
concerning End Users if this collection is not fully disclosed in Your Privacy
Policy;
(g)
perform any activity that involves, facilitates,
advocates or promotes:
(i)
discrimination
on the basis of race, ethnicity, gender, religion, sexual orientation, age or
disability;
(ii)
libelous,
defamatory, obscene, pornographic, sexually explicit or abusive activities or
materials;
(iii)
gambling
or illegal substances;
(iv)
pornography
including child pornography;
(v)
sedition,
unauthorised copying or distribution of copyrighted materials (e.g. music,
videos, books etc) or any other illegal activities; or
(vi)
any
violation of law or breach of the intellectual property or other rights of any
other person, entity or organisation;
(h)
violate the reasonable standards of doing business
on the Internet (as determined by DNAML in its sole discretion); and
(i)
any other activity that may expose DNAML or any
Seller to increased business risk or legal liability.
(a)
Your breach of clause 6.3 will result in
irreparable injury to DNAML for which monetary damages alone would not be an
adequate remedy;
(b)
in the event of a breach or threatened breach of clause
6.3, DNAML will be entitled to seek injunctive or other equitable relief
without the necessity of posting a bond;
(c)
DNAML may present this Agreement to the court as a plea
in abatement; and
(d)
any relief under clause 6.3 will be in addition to
and not in lieu of any appropriate relief such as monetary damages.
7.1
You grant DNAML and each applicable Seller a
non-exclusive, worldwide, transferable, assignable and royalty free right and
licence, to use Your name, trademarks and service marks (including logos) to Market:
(a)
Your relationship with Seller;
(b)
Your use of the DNAML System; and
(c)
for any other purposes under the Terms.
7.2
Sellers may design, provide and administer Links
and Collateral Materials for Seller's Titles.
7.3
Either DNAML or a Seller will own and license Links
and Collateral Materials and You must not claim ownership of or otherwise
dispute these proprietary or intellectual property rights. Upon DNAML's request
through the DNL DRM Administration System, You must promptly cease or modify
all of Your uses of the Links or Collateral Materials that either DNAML or a
Seller, in its sole discretion, requires.
7.4
DNAML may from time to time and without notice in
the DNL DRM Administration System or any other individual, place restrictions
on sales in the DNL DRM Administration System, including limiting the number or
dollar amount of purchases on a credit card, or setting minimum or maximum
prices. DNAML may also refuse to process transactions via the DNL DRM
Administration System for certain End Users, Sellers or Distributors in its
sole discretion.
7.5
DNAML owns and may use any data from the use of the
Links or Sales for analysis purposes, and to maintain the DNAML System and
Links.
7.6
DNAML may enter into Distributor Agreements with
other entities including Your competitors.
7.7
DNAML is not liable or responsible for Your or
Seller’s business activities including:
(a)
the content of the Seller’s Titles that may be
available through the DNAML System;
(b)
any Compensation that Seller must pay to You; and
(c)
any claim, loss or damage arising out of the Titles
sold by the Seller.
8.1
Compensation paid to You is paid to You by DNAML
through the DNL DRM Administration System on behalf of the Seller from payments
received from End Users. If at any time the payments from Sales in DNAML's
possession are insufficient to satisfy any of Seller's Compensation obligations
to You or if DNAML does not make payment of earned Compensation to You for any
other reason, then Your sole and exclusive remedy shall be directly against the
relevant Seller.
8.2
If a Seller requires Your Compensation to be based
on net receipts, there may be global charge-backs that increase after You have
received Compensation. DNAML will compute these Charge-backs as charges against
any future Compensation owed to You. You must pay DNAML any outstanding
negative balances that may arise out of Charge-backs related to Your Sales. Charge-backs are sums of money that
have been:
(a)
deemed to have been refunded by or returned by a
Seller or DNAML to a End User based on a Sale that has been voided, retracted,
subject to returns, been reversed due to fraud, or otherwise rescinded for any
reason under the End User Licence Agreement;
(b)
retrieved from, reserved against and/or charged
against DNAML, DNAML's accounts under the terms of any applicable agreements or
arrangements with a third party with an eCommerce system or payment gateway; or
(c)
retrieved from, reserved against and/or charged
against DNAML, DNAML's bank accounts or DNAML's eCommerce system or other
accounts because of government actions including but not limited to embargo,
court order, levy, security interest or other form of lien, reclamation,
escheat or civil forfeiture.
8.3
You will not be entitled to receive Compensation
until End User's payment has cleared or funds have been transferred into the
eCommerce system. Your account will not accrue interest. If Your account has a
negative balance for any period of 45 days or more, then the account is subject
to a charge of 1.5% interest per month, compounded monthly. The Terms may be
terminated for Your non-payment of the negative balance and any interest. Your accounts
not registering Sales for six (6) concurrent months may be terminated and Your pending
Compensation forfeited at the sole discretion of DNAML.
8.4
DNAML may retain some or all of any Compensation
that may be owed to You as a reserve against possible Charge-backs in the
future that may accrue against Affiliate's prior Sales, or other financial
obligations of You ("Reserve").
Any Reserve will be paid to You within one year of the time it was initially
retained. You will compensate DNAML for any debt owed to DNAML including debts
due to Charge-backs. DNAML shall have no liability to You in connection with
any damages that You may sustain as a result of DNAML retaining a Reserve.
8.5
DNAML will calculate the Compensation owed to You by
Sellers, and pay this Compensation to You, so long as the applicable Seller has
deposited sufficient funds with DNAML for this purpose ("Seller Funds"). If Seller fails to
pay sufficient Seller Funds to DNAML, then You are not entitled to Compensation
until Seller deposits with DNAML sufficient Seller Funds for DNAML to pay You.
Unless otherwise agreed to by DNAML in writing, Your first Compensation payment
will be made in the month sixty (60) days following Your first, non-refunded
sale.
8.6
To the extent that the total amount of Compensation
owed to You in any one month is less than USD$50, DNAML shall withhold the
payment if Compensation for that month until the total Compensation reaches the
USD $50 minimum. The parties agree Compensation, if any, will be paid to You in
Australian Dollars.
8.7
For each payment made to You by DNAML You will pay
a payment processing fee of USD $10 for payments to the United States and
United Kingdom and US$20 payments to all other countries. This fee is deducted
from any payment to be made to You in addition to any other applicable fees to
be deducted and specified in the DNL DRM Administration System.
9.1
NOTHING IN THESE TERMS, INCLUDING CLAUSES 9 AND 10
EXCLUDES OR LIMIT DNAML’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE
LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR
EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF
CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL
APPLY TO YOU AND DNAML’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT
PERMITTED BY LAW.
9.2
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF
THE DNAML SYSTEM IS AT YOUR SOLE RISK AND THAT THE DNAML SYSTEM IS PROVIDED
"AS IS" AND “AS AVAILABLE.”
9.3
IN PARTICULAR, DNAML, ITS SELLERS, AND ITS
LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(a)
YOUR USE OF THE DNAML SYSTEM WILL MEET YOUR
REQUIREMENTS;
(b)
YOUR USE OF THE DNAML SYSTEM WILL BE UNINTERRUPTED,
TIMELY, SECURE OR FREE FROM ERROR;
(c)
ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR
USE OF THE DNAML SYSTEM WILL BE ACCURATE OR RELIABLE; AND
(d)
DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY
SOFTWARE PROVIDED TO YOU AS PART OF THE DNAML SYSTEM WILL BE CORRECTED.
9.4
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF THE DNAML SYSTEM IS DONE AT YOUR OWN DISCRETION AND RISK AND
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER
DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
9.5
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM DNAML OR THROUGH OR FROM THE DNAML SYSTEM CREATES ANY
WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
9.6
DNAML FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES
AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.1 SUBJECT TO THE OVERALL
PROVISIONS IN CLAUSE 9.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT DNAML,
ITS SELLERS, AND ITS LICENSORS WILL NOT BE LIABLE TO YOU FOR:
(a)
ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED
AND UNDER ANY THEORY OF LIABILITY. THIS WILL INCLUDE, BUT NOT BE LIMITED TO,
ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF
GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT
OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; AND
(b)
ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU,
INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(i)
ANY
RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY
ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND
ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE DNAML SYSTEM;
(ii)
ANY
CHANGES WHICH DNAML MAY MAKE TO THE DNAML SYSTEM, OR FOR ANY PERMANENT OR
TEMPORARY CESSATION IN THE PROVISION OF THE DNAML SYSTEM (OR ANY FEATURES
WITHIN THE DNAML SYSTEM);
(iii)
THE
DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER
COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE DNAML
SYSTEM;
(iv)
YOUR
FAILURE TO PROVIDE DNAML WITH ACCURATE ACCOUNT INFORMATION;
(v)
YOUR
FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
10.2
THE LIMITATIONS ON DNAML’S LIABILITY TO YOU IN
CLAUSE 10.1 WILL APPLY WHETHER OR NOT DNAML HAS BEEN ADVISED OF OR SHOULD HAVE
BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
11.1 You will unconditionally defend,
indemnify, and hold harmless Sellers, End Users, DNAML, their subsidiaries,
parent companies, affiliated companies, successors, assigns, distributors,
agents, suppliers and their employees, contractors, officers, agents, attorneys
and directors from all liabilities, claims, losses and expenses, including
attorney's fees and costs in connection with any claim, demand, allegation,
accusation or action based upon whether founded in good faith or not, resulting
from or related to Your alleged:
(a)
intentional act, omission or misrepresentation;
(b)
violation of law;
(c)
breach of its obligations, representations or
warranties under the Terms; or
(d)
that arise from Your activities under the Terms or
participation in the DNAML System,
and you will pay this indemnity on demand.
11.2 DNAML may, at its own
expense, assume the exclusive defence and control of any matter otherwise
subject Your indemnity, in which event You will cooperate with DNAML. If You fail
to undertake Your obligations under this clause 11, then DNAML will have the
right, but not the obligation, to undertake the defence and You will pay for
the attorneys’ fees and costs of this defence. You also unconditionally indemnify
DNAML for its actual attorneys' fees and other costs in investigating or
enforcing its rights under this Agreement, including all appeals, and pay this
indemnity on demand.
12.1 Termination of Agreement
(a)
DNAML may terminate the Terms at any time without
cause, upon giving You written notice, which may be given through the DNL DRM
Administration System.
(b)
DNAML or a Seller may terminate Your right to
participate in the DNAML System with respect to any or all Titles of a
particular Seller without cause, upon giving You written notice, which may be
given through the DNL DRM Administration System.
12.2 Breach of Agreement
If You are in breach of the
Terms, then DNAML may terminate the Terms upon giving you written notice, in
addition to any other rights or remedies available to DNAML.
12.3 Effect of Termination
If the Terms are terminated
in whole or with respect to a particular Seller or certain Titles of a
particular Seller for any reason, then:
(a)
upon termination, all applicable rights, authorisations,
licences and sub-licences that were granted to You by Seller or DNAML will
terminate, and You will promptly cease to use any Links and Collateral
Materials and any applicable references to the identities of Seller, DNAML and Titles
and services of Seller;
(b)
You will receive Compensation under the terms of
this Agreement for those terminated Seller Titles and services that accrued
prior, but not after, the date of the termination;
(c)
any liability for amounts owed by You to DNAML or
Seller (for Charge-backs or otherwise) will survive the termination of the
Agreement. You will pay these amounts in full no later than sixty (60) days
from the termination date.
(d)
these remedies are non-exclusive and DNAML reserves
its right to pursue any other remedies that may be available to it at law or
equity. All other provisions of this Agreement that are intended to survive the
termination of this Agreement in whole or with respect to a particular Seller
or certain Titles of a particular Seller, will survive.
13.1 Sometimes when You use the DNAML
System, You may (as a result of, or through Your use of the DNAML System) use a
service or download a piece of software, or purchase goods, which are provided
by another person or company. Your use of these other services, software or
goods may be subject to separate terms between You and the company or person
concerned. If so, the Terms do not affect Your legal relationship with these
other companies or individuals.
13.2 Neither You nor DNAML will
be liable for any delay in or failure to perform if such delay or failure
arises from any event beyond its reasonable control including any Act of God,
civil commotion, fire, explosion, lightning, storm, flood, earthquake,
accident, rebellion, insurrection, riot, industrial dispute or lock-out, or act
of government. If such an event prevents or delays one party from performing
the Terms, it must notify the other party as soon as reasonably practicable,
and must recover from such position as soon as possible.
13.3 The Terms constitute the
whole legal agreement between You and DNAML and govern Your use of the DNAML
System (but excluding any services which DNAML may provide to You under a
separate written agreement), and completely replace any prior agreements
between You and DNAML in relation to the DNAML System.
13.4 DNAML may assign all or
part of its rights under these Terms.
13.5 You agree that DNAML may
provide You with notices, including those regarding changes to the Terms, by
email, regular mail, or postings on the DNAML System. You agree that the Terms may specify the form
of some notices and that any written notice to DNAML must be sent to DNAML Legal Department as well
as by express mail delivery to:
Attention: Legal
Department, DNAML
Suite 4, Level 4, 189 Kent
Street
Sydney NSW 2000 Australia
13.6 You and DNAML must do
anything (including sign any document) and must ensure that You do everything
(including sign any document) to give full effect to the Terms.
13.7 You agree that if DNAML
does not exercise or enforce any legal right or remedy which is contained in
the Terms (or which DNAML has the benefit of under any applicable law), this
will not be taken to be a formal waiver of DNAML’s rights and that those rights
or remedies will still be available to DNAML.
13.8 If any court of law, having
the jurisdiction to decide on this matter, rules that any provision of these
Terms is invalid, then that provision will be removed from the Terms without
affecting the rest of the Terms. The remaining provisions of the Terms will
continue to be valid and enforceable.
13.9 You acknowledge and agree
that each member of the group of companies of which DNAML is a member and Sellers
and End Users will be third party beneficiaries to the Terms and that such
other companies will be entitled to directly enforce, and rely upon, any
provision of the Terms which confers a benefit on (or rights in favour of)
them. Other than this, no other person or company will be third party
beneficiaries to the Terms
13.10 The Terms, and Your
relationship with DNAML under the Terms, will be governed by the laws of the
State of New South Wales, Australia without regard to its conflict of law
provisions. You and DNAML agree to submit to the exclusive jurisdiction of the
courts located within that State to resolve any legal matter arising from the
Terms. Notwithstanding this, You agree that DNAML will still be allowed to
apply for injunctive remedies (or an equivalent type of urgent legal relief) in
any jurisdiction. You agree that the Terms are deemed to have been entered into
in New South Wales, Australia, regardless of the location of the parties
executing this Agreement. Reasonable attorneys’ fees and costs shall be awarded
to the substantially prevailing party.
13.11 You
agree that no money or other thing of value (including any part of any amount
payable to or by it pursuant to these Terms) shall be offered, paid or promised,
directly or indirectly, to any governmental official or political party or
official of such party, or any candidate for political office, or any person or
entity for the purpose of:
(a)
influencing any act or decision of such person,
entity or party; or
(b)
inducing such person, entity or party to influence
any act or decision of any national, state or local government or
instrumentality thereof.
For the purpose of this clause 13.11, “governmental
official” shall include any officer or employee of a national, state or local
government or any department, agency or instrumentality, or any person acting
in an official capacity for or on behalf of such government or department,
agency or instrumentality.
13.12
You represent and warrant that you have reviewed and are
familiar with the provisions of the United States Foreign Corrupt Practices Act
of 1977, as amended (the “FCPA”) and
that You have taken no action that if taken by a United States company would
constitute a violation of the FCPA. DNAML shall have the right to terminate
this Agreement upon any breach (or if DNAML reasonably believes that there has
been a breach) of this provision.