Smashwords
TERMS OF SERVICE
Updated April 29, 2008

PLEASE READ THE FOLLOWING CAREFULLY. THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME (“Terms”), ARE A BINDING AGREEMENT (“Agreement”) BETWEEN YOU (“End Users”, “Authors”, "Author Agents", and “Publishers” as defined below) AND SMASHWORDS, INC. (“Smashwords”).

By using the service available at www.smashwords.com and affiliated domains (the “Site”), You agree to the terms governing the applications, features and functionality available on or through the Site (The “Service”). If you do not agree with these terms, do not use the service.

The following describes how users of the Site who review or purchase downloadable digital books (“End Users”) can download material and how they may review or use that work by the person who posted the work (the “Author” or “Publisher”).

The following also describes the rights and responsibilities of the Author and Smashwords. Any user of this Site who downloads, reads or previews any Work on the Site is referred to as an “End User.”

1. The Grant and the Territory
The Author hereby grants and assigns to Smashwords the nonexclusive worldwide right to digitally publish, distribute, market and sell (“Publish”), and to license others to do so, the work identified on the front page of your submission (the “Work”). Since the Author’s terms of agreement with Smashwords, herein, is non-exclusive, Author is free to Publish, license, market and sell their work elsewhere so long as Author is not violating someone else’s agreement or violating any laws.

2. Publication. Smashwords will generally Publish any such submissions which do not violate, or which do not appear to violate the Agreement.

2a. Publication of Work As Is. Generally, Smashwords will Publish Author’s Work as it is delivered to us, and not edit or modify the Work. Certain modifications may occur caused by file or design conversions. Smashwords does not guarantee accurate preservation of the original Work’s formatting.

2b. Publication at Option of Smashwords. Smashwords may decide not to Publish Author’s work or may decide to discontinue its publication of Author’s work for any reason and for no reason, and no reason need be provided.

2c. Removal upon Five Days Notice of Termination. Smashwords may Publish the Work until Author of the Work decides to unpublish the work (to unpublish, log in to the system, click on “Dashboard” and then click “unpublish”). If author is unable to access the site, the author may notify Smashwords in writing to remove the Work. After that notice, Smashwords will remove the work within five business days.

3. Infringement.

3a. Removal of Infringing or Defamatory Work of Author. Smashwords takes claims of infringement seriously and may take immediate action upon notice from someone claiming to be an Infringed party and pursuant to our DMCA policy [link to polic at end of this document]. Generally, upon receipt of a written notice from a party infringed or defamed by Author’s material (or someone purporting to be his agent, publisher, attorney in fact or assign), Smashwords will remove the Author’s Work and reserves the right to remove any and all information about the Author or Author’s Work from the Site.

3b. Infringement by Others Upon Author’s Work. If an Author or copyright holder learns that a third party is violating Author’s copyright or pirating or illegally distributing a Smashwords-published work, the Author shall inform Smashwords; however, it is the Author’s responsibility to seek relief from the offending parties. If that work is published on Smashwords, Smashwords will remove it per section 3a above.

3c. Rights Clearances and Other Legal Matters. It is Author’s responsibility to secure permissions to the Work prior to the time Author submits such work if any material from the work belongs to, or has been licensed to, someone else.

4. Copyright. The copyright in the Work shall belong to the Author or the party that Author cites as the copyright holder. Author shall be solely responsible for filing its copyrights and any other intellectual property with the appropriate governmental body. It is the Author’s responsibility to place a copyright notice on the copyright page or some other prominent place in the Work.

5. Formats of Digital Conversions. Author shall submit their Work in one of the following formats: Microsoft Word, .txt, .htm, .html and .rtf. Smashwords shall Publish the work in various ebook formats for use in sampling and selling the work.

6. Royalties. So long as the proper copyright protection subsists in the Work, no infringement notices have been filed, and revenues directly attributable to the Work are being collected by Smashwords, the Author shall be entitled to the following payments:

6a. Electronic Editions. Smashwords agrees to pay author eighty-five percent (85%) of net proceeds received by Smashwords through the sale or licensing of your work (“List Price”). “Net proceeds” shall mean sales price paid and received less payment processing fees, costs due to erroneous or fraudulent transactions, credit card charge-backs and associated fees. Therefore, 85% of “net proceeds” does not equal 85% of the book’s sales price. Payment processing fees may account for a sizable percentage of the List Price for lower cost books because they include a nominal minimum per-transaction fee ranging charged to Smashwords by our payment processing service PayPal.
Smashwords fully discloses and estimates anticipated payment processing fees and estimated proceeds to the Author at the time you assign pricing for your works. Actual proceeds to the author may be greater than estimated if a customer purchases multiple books at the same time, thereby spreading some of the per-transaction fee across more than one book.
6b. Free Copies. As administrator of your work, Author may ship complimentary copies of the work even when you are generally charging a fee.
6c. Promotional Rights. Smashwords shall have the right to distribute samples of the Work in any form of media, including printed media, in order to promote (a) the author or author’s Work and/or (b) the Smashwords service. These samples will be licensed for free, non-commercial use, duplication and sharing, and will comply with the sample percentage authorized by the Author.

6d. Crawlable or Other Searchable Rights. Smashwords shall have the right to drive traffic to the Author’s Work on the Smashwords Site through (a) general Search Engine Optimization services (b) crawlable, promotional hypertext links or (c) arrangements with third parties which make searchable certain sample portions of the Work. In the event that revenue is realized by Smashwords from this arrangement, it shall be treated as an electronic edition under Section 6a.

6e. Other Subidiary Rights. Other than stated above, Smashwords, in its current version, shall only Publish electronic versions of the Work, and keeps no other subsidiary rights to the Work including hardcover or paperback editions, audio editions, multimedia editions, theatrical editions, first and second serial rights or media rights other than the electronic version distributed on our Site. Therefore, if another publisher will allow you to keep electronic rights to the Work, you may continue to Publish the Work electronically while publishing a printed version of the Work with a print publisher. These rules are subject to change from time to time, upon electronic or other notice to the End-users and any other users.

7. Author-Controlled Terms. The Site allows Author to control pricing, sampling rights and output formats. Smashwords may extend author control in the future.

8. Statements and Payments of Author Royalties:
(Although Smashwords will refer in this agreement to “Royalties” for the sake of simplicity, payments to authors in the eyes of the IRS are really “other income.”) Smashwords pays author royalties on a quarterly basis, approximately 40 days following the close of each calendar quarter. Authors can track their real-time sales and anticipated royalty payments by visiting the Dashboard feature from their Smashwords account. If accrued author royalties are less than $25.00, Smashwords will delay payment until such quarterly period as the total royalties due exceeds $25.00. If Smashwords overpays royalties, such as in cases when fraudulent or unauthorized purchases are charged back to Smashwords after royalty payments are made, then Smashwords will deduct the funds owed from the author’s accrued royalties. If the amount owed exceeds the author’s accrued royalties, the author agrees to remit a payment back to Smashwords to adjust the overpayment.

9. Author’s Warranties. The warranties and representations contained in this Agreement extend to Author and its licensees and successors and assigns.

9a. By submitting Your Work to Smashwords for publication, You, the Author or author’s Publisher or Distributor, warrant and represent that (to the extent you have not expressly secured permission from someone else to Publish their Work) You:
• are the only author of the Work;
• are the sole owner of the rights herein granted;
• have not assigned, pledged, or encumbered such rights or have not entered into any agreement which would conflict with the rights granted to Smashwords herein; and you agree not to do any of the aforementioned without first unpublishing your work at Smashwords
• have full right, power, and authority to enter into this Agreement and to grant the rights granted herein;

9b. You further grant that the Work contains no materials which:
• violate any right of privacy which is libelous or violate any personal right or other right of any kind of any person or entity;
• would violate any of Your contracts or would disclose any information given to You on the understanding that it would not be published or disclosed;
• plagiarize or pirate any other work or infringe upon any copyright, trademark or other proprietary right;
• Are injurious to End-Users or others including but not limited to recipes, formulae or instructions, and
• violate state and federal laws.
• advocate hateful or racist views or actions toward others
• advocate illegal activities

10. End Users. “End-Users” who pay whichever fee is set by the Author to purchase a Work are allowed to use each copy of the Work in any reasonable non-commercial manner in compliance with copyright law and pursuant to this Agreement.

10a. Rights of Use.
1. Purchased works: As End User, you acknowledge that all Work furnished by Smashwords is licensed for the use of the End Users of the Site and may not be sublicensed or resold. If you purchase a work, you hold a non-exclusive, non-transferable, and non-distributable right of use. In other words, you are free to enjoy it for your own use, but you are not authorized to share, sell, or distribute the work to others.

2. Free works including sample works: By definition, if an Author sets the price for the Work at zero, or if the author samples a certain percentage of their work, End Users may duplicate, share and reproduce the work or sample during the time the price is set at zero, but only for non-commercial purposes. Therefore, free works may not be reproduced for the purpose of generating traffic for your web site or blog, or for running advertising or promotional messages. Print or online reproductions should contain the following legend containing live clickable hyperlinks at the beginning and end of the document that reads, “This is the copyrighted work of [insert author’s first and last name], as originally published on Smashwords.com at http://www.smashwords.com and at [insert direct hyperlink to the book page of the work]. This work may be freely duplicated and shared for non-commercial purposes. All reproductions are to maintain this legend at the beginning and end of the work, in its entirety.” Blogged excerpts of under 3,000 words need only either hyperlink to the author’s page on Smashwords, or place the above legend at the end of the excerpt:



10b. Fees and Services By using the Site the End User is agreeing to pay the fees as presented by Smashwords and set by the Author at the time of purchase. The Author sets the price for their individual Works. End User will have an opportunity to review and accept the fees for the purchase End User is requesting prior to payment. All purchases are final and non-refundable. The Site may change pricing policies and fees for services we provide at any time from time to time and changes shall be effective immediately. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with your use of the Site.

10c. Abusing Smashwords. Smashwords and its users work together to keep the Site working properly. Please report problems and policy violations to Smashwords. The warranties and representations contained in this Agreement extend to End Users and other licensees and successors and assigns of Smashwords. End Users agree while using the Site, Services or Work you agree to not:
• violate any laws, third party rights, or any policies which we have posted on the Site from time to time;
• use the Site, Service or Work if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our Site;
• circumvent or manipulate our fee structure or the billing process;
• engage in advertising, marketing, spam, chain letters, or pyramid schemes involving or using the Work from the Site;
• distribute viruses, malware or any other technologies that may harm Smashwords, or the interests or property of Smashwords users; or
• copy, modify, or distribute content from the Site, or Smashwords’ copyrights and trademarks.

Without limiting other remedies, we may limit, suspend, or terminate the Service and End User accounts, prohibit access to our Site, demand return or destruction of any Work improperly taken or used from the Site or Service and take technical and legal steps to keep users off the Site if we think that they are creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of our policies.

11. Ownership. You acknowledge and agree that the Site and Service are proprietary to Smashwords and that the Work is proprietary to the Author; that none are proprietary to End User.

12. Termination. Either party may terminate this agreement this Agreement at any time without notice. Registered Smashwords members may cancel their membership at any time, and published Smashwords authors maybe remove their author page and book listings at any time.

13. Indemnification.

13a. General. You (Author or End User) will indemnify and hold Smashwords and its licensees, successors and assigns, and its and their distributors, customers, officers, directors, members, employees and agents, harmless against any expense (including, but not limited to, reasonable attorneys’ fees and disbursements) or judgment, settlement or other liability arising out of any claim or legal proceeding asserting claims contrary to any warranty or representation made by You in this Agreement.

13b. Notice of Claim. Upon receiving notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with or contrary to any of the warranties or representations contained in paragraph 10, Smashwords shall have the right to withhold any sums payable to the Author in reasonable amounts as security for the payment of the Author’s potential obligations pursuant to the indemnity contained in this paragraph 13. It is intended that the right granted by this subparagraph 13b shall not be unreasonably or frivolously exercised by the Smashwords.

14. Disclaimer of Publisher’s Warranties.

14a. DRM, Piracy and the “Trust” System. Smashwords is a strong proponent of author’s rights, and the right of authors and copyright owners to receive compensation for their digitally published Works. Therefore, Smashwords strongly discourages piracy/infringement of Author Work and encourages customers to purchase licensed copies. However, Smashwords does not publish works containing digital rights management schemes that limit the customer’s ability to consume Author’s Work as they see fit. Therefore, Smashwords cannot completely prevent piracy/infringement of Author’s Work (the reality of the matter is that even DRMed content can be reproduced and pirated, just as easily as a printed book can be scanned and digitized). When Author lists the Work on Smashwords you are trusting the consumer to honor your legal copyright and abide by the licensing terms you set. There is a growing body of evidence indicating that DRMed Works do not sell as well as non-DRMed Work because customers resent limitations and don’t appreciate being mistrusted. Non-DRMed Works often outsell DRMed Works by leveraging the viral nature of uninhibited sampling and sharing which can dramatically increase your total audience and sales opportunities. There is also evidence that by pricing your Works for less than printed equivalents, you can further decrease piracy and increase sales volume. You understand that Smashwords is distributing the Works according to this so described Trust system.

14b. Events Voiding Warranty. Smashwords does not warrant the (a) defects caused by failure to provide a suitable installation environment for the Product, (b) damage caused by disasters such as acts of God, wars, riots, strikes, terrorism, governmental restrictions, fire, flood, wind, and lightening, (c) damage caused by unauthorized attachments, modifications or mis-configurations to the Smashwords Environment, or (e) any other abuse or misuse by Author or the End-Users. Any breach of the End-User License Agreement by or on behalf of an End-User, including, without limitation, unauthorized modification or distribution of the Product or any portion thereof, will void any and all warranties.

14c. WARRANTY DISCLAIMER. All Works and the Service is provided to End Users “AS IS” and “WITH ALL FAULTS.” THE ENTIRE RISK AS TO THE SELECTION AND USE OF THE SMASHWORDS SERVICE OR ANY MODIFICATIONS THERETO OR THE WORK IS WITH AUTHOR AND END-USERS. SMASHWORDS DOES NOT WARRANT THAT THE PRODUCT OR MODIFICATIONS WILL MEET THE REQUIREMENTS OF END-USERS. TO THE EXTENT THAT SMASHWORDS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.

14d. LIMITATION ON DAMAGES. IN NO CASE SHALL SMASHWORDS BE LIABLE TO AUTHOR OR END-USERS, OR ANY OTHER THIRD PARTY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND. In the event that Smashwords is found liable for any damages, for any reason whatsoever, Author hereby expressly agrees that, in no event will Smashwords’ liability to Author and End-Users exceed the amounts paid to the Author by Smashwords hereunder for such End-User.

14. MISCELLANEOUS.

14a Entire Agreement. This Agreement is the entire agreement between the parties concerning the subject matter hereof.

14b Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California. If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.

14c No Agency. No agency, partnership, joint venture or other joint relationship is created hereby.

14d Legal Action. Venue for all purposes hereunder shall be in Santa Clara County, California, and the parties hereto hereby consent to such jurisdiction and venue. If any action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

14e Acknowledgement. By using the Service you acknowledge that you have read this Agreement, understand it and will be bound by its terms and conditions.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and the year upon which the Author first approved such Terms of Service.




Digital Millennium Copyright Act (DMCA) Notice Policy

If you feel that content posted on the Smashwords Site infringes on your copyright(s), please immediately contact Smashwords by sending an email notice to dmca at smashwords dot com providing the information described below. If Smashwords takes action in response to an infringement notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent known email address. The infringing party may be held liable for damages based on material misrepresentations contained in the infringement notice. We would advise the infringed party to contact an attorney to discuss the matter prior to sending notice.

All Infringement Notices should include; (1) An electronic signature and full name, address, phone number and email address of the copyright owner and the person authorized to act on their behalf; (2) An identification of the copyright claimed to have been infringed; (3) the location and nature of the content that Infringed party claims to have infringed upon its copyright, in sufficient detail to permit Smashwords to identify that content; (4) and a statement by the Infringed: (a) that you believe in good faith that the use of the content that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; (b) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and (c) a statement that you are either the copyright owner or a person authorized to act on their behalf.

Upon receipt of a written notice from a party infringed or defamed by Author’s material (or someone purporting to be his agent, publisher, attorney in fact or assign), Smashwords will remove the Author’s Work and reserves the right to remove any and all information about the Author or Author’s Work from the Site. Smashwords may allow corrected or legally vetted versions of the purportedly infringing or defamatory Work to be posted again, (1) with a stipulation between the parties that they have resolved their dispute, (2) a court order or (3) a certification by an independent attorney in whose professional opinion states that in the current version, the infringing material of which the purportedly infringed party has complained has been removed from the Work