TERMS OF SERVICE
Updated October 16, 2015
Most recent updates - Minor clarifications: added information about preemptive opt outs; introduced the concepts of "Primary" stores (standalone retail or library operations) and "Secondary" stores (stores powered by other stores); added special subsection (9e) on erotic literature guidelines and to clarify policies on certain taboo subjects.
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 or entity who posted the work (the “Author” or “Publisher”). For the sake of simplicity, this Terms of Service may use the term Author and Publisher interchangeably. The term “Author’s Agent” refers to the Author’s duly authorized representative, who is fully authorized and empowered to act on behalf of the Author in all matters described in this Agreement, and who may be authorized to collect and receive directly the monies otherwise payable to 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 terms of agreement with Smashwords, herein, is non-exclusive, the Author or Publisher is free to Publish, license, market and sell their work elsewhere so long as the Author or Publisher is not violating someone else’s agreement or violating any laws. Distribution channels are disclosed on the Smashwords Distribution Information page. Several distribution partners power additional storefronts or services. For the sake of simplicity, we identify these as "Primary" retail and library partners on the Smashwords Distribution Information page, and the secondary services or storefonts they power or operate as secondary sales outlets. For example, Kobo is a primary retailer, but they also power the "Secondary" ebook stores WHSmith in the UK and FNAC in France. By utilizing Smashwords distribution services, your books may benefit automatically from broader distribution if and when our previously disclosed distribution partners launch or power new secondary stores.
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. To assist authors with their book formatting, Smashwords has published the free Smashwords Style Guide.
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 no reason need be provided. Except in the cases of gross violations of this Terms of Service, Smashwords will make every attempt to provide reasonable notice to the Author via email, up to and including providing instructions on how to remedy potential issues that might prevent Smashwords from listing a title.
2c. How to "Unpublish" Works from Smashwords. 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 from Smashwords.com within five business days. If the author's or publisher's book has been distributed via the Premium Catalog, the removal from the retail partners' digital shelves may take several weeks. Smashwords will do its best to assist authors and publishers to have their works removed, and to ensure authors/publishers who terminate their Smashwords accounts receive full payment for sales that may occur after account termination. To ensure your book is properly and quickly removed from the channel, go to your Dashboard and unpublish it. This will cause Smashwords channel partners to receive automatic notification to remove the book. Do not contact Smashwords first and ask to have your account deleted, as this will not remove your book from the channel. After you have unpublished your book, and after you have confirmed all channel partners have removed the book, then you may contact Smashwords if you want your account deleted (and please inform Smashwords you have confirmed the book is no longer in the channel).
2d. Distribution in the Smashwords Premium Catalog. Although Smashwords hoperate a small retail ebook store (the Smashwords Store), since August 2009 the primary business focus of Smashwords has been ebook distribution to retail stores, library aggregators and affiliated partners. In support of this service, Smashwords created the Smashwords Premium Catalog, a subset of Smashwords titles that meet the mechanical requirements of our distribution partners. To learn more about these requirements, as well as the retailers, library partners and affiliated sales outlets to which we distribute, visit the Distribution information page. Our intention is to help every Smashwords author or publisher who desires distribution to receive it. Smashwords reserves the right to withhold distribution for any reason.
2e. Removal of poorly formatted works. At the top of the upload page where authors publish their works, Smashwords clearly communicates to all authors and publishers their responsibility to study and implement the Smashwords Style Guide's formatting requirements prior to uploading a manuscript to Smashwords. Smashwords, at its option, may without warning close the accounts of authors and publishers who blatantly ignore the formatting requirements. We urge all Smashwords authors not to waste the time of readers, our retail partners or Smashwords with poorly formatted works.
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 [see policy 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, the Author’s Work or the publisher 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 as a Microsoft Word .doc file. Smashwords shall utilize its proprietary Meatgrinder technology to convert the book into multiple ebook formats, and publish the work for use in sampling, distributing and selling the work. The author/publisher is not authorized to independently sell or distribute Smashwords-generated file conversions outside of the Smashwords site or Smashwords distribution network without first receiving written permission from Smashwords (in other words, you cannot use Smashwords as a free file conversion service so you can sell the files elsewhere). You acknowledge that if you violate this requirement, you may forfeit any accrued earnings at Smashwords, and your account may be deleted without notification.
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 and/or publishing party shall be entitled to the following payments:
6a. Royalty Rates. The proceeds to the author or publisher will vary based on the sales outlet, and the method of the sale. For retail sales that originate at Smashwords.com, Smashwords pays authors/publishers 85% of the net proceeds from all sales (see 6b below for clear definition of "net"). Following the introduction of the Smashwords Affiliate Marketing Program on May 22, 2009, Smashwords began offering a net earnings-share rate of 70.5% for sales originating as a result of an affiliate. Authors/Publishers who do not wish to participate in the affiliate program may opt out a book at any time within 30 days of publishing the book. After the 30-day grace period, opt-outs become effective on the first day of the following month. Starting in September 2009, Smashwords began distributing books via major online retailers. In most instances, Smashwords will compensate authors at a rate of 60% list price, which works out to slightly more than 85% of the net proceeds received by Smashwords from the retailers. Smashwords will notify authors of the individual compensation rate they will receive from Smashwords for sales at each major channel partner with the Channel Manager, and will give authors/publishers the option to opt out of certain channel partners if they wish. Also see the Smashwords Royalty FAQ for current earnings-share rates, which are subject to change. For sales through the Smashwords Library Direct channel, announced August 7, 2012, Smashwords authors and publishers will earn 70% of the price paid by libraries. Authors and publishers can control this price within the Smashwords Pricing Manager feature, accessible from the Dashboard.
6b. Electronic Editions. Smashwords agrees to pay the Author or Publisher (whomever uploaded the content) up to 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, affiliate fees, retailer discounts, 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, for example, 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. For example, if the per-transaction fee charged by our payment processor is $.35, and a book is only priced at $1.00, then that $.35 accounts for 35 percent of the retail price. Smashwords fully discloses and estimates anticipated payment processing fees and estimated proceeds to the Author at the time you assign pricing for your works (to test this, sign in to your account and click to the Publish page and experiment with different pricing scenarios). 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.
6c. Free Copies. As administrator of your work, Author may use the Smashwords platform to distribute complimentary copies of the work, or personally email free files to people, even when you are generally charging a fee. However, Smashwords files cannot be mass-distributed via download at blogs, websites or other retailers outside the Smashwords network.
6d. 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.
6e. 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.
6f. Other Subsidiary 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, distribution channels, sampling rights and output formats. Smashwords may extend author control in the future. All Premium Catalog books are automatically opted in to all new and existing distribution channels. In all instances, prior to activating a new distribution channel, Smashwords will provide authors and publishers at least 48 hours advance notice to allow time to opt out from the Smashwords Channel Manager if they choose. This advance notice will generally be provided through Site Updates, and to subscribers of author/publisher alerts, and other promotion. Effective January, 2015, Authors and publishers who wish to preemptively opt out of new, unannounced distribution channels may do so within the Smashwords Channel Manager by following the link at the bottom of the page labeled Manage Preemptive Opt Out Settings.
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 (or Author's Agent) earnings on a quarterly basis, approximately 40 days following the close of each calendar quarter. Authors can track their real-time sales and anticipated earnings payments by visiting the Dashboard feature from their Smashwords account. From the Payee Page, authors, agents and publishers can select their payment method of paper check (US authors/publishers only) or PayPal. Paper checks require accrued earnings of $75.00 or more. For PayPal, the required accrued earnings are $10.00. If accrued author's, agent's or publisher's aggregate earnings are less than the threshold, Smashwords will delay payment until such quarterly period as the total earnings due exceed the threshold. If Smashwords overpays earnings, such as in cases when fraudulent or unauthorized purchases are charged back to Smashwords after earnings payments are made, then Smashwords will deduct the funds owed from the author’s, agent’s, or publisher’s aggregate accrued earnings. If the amount owed exceeds the author’s, agent’s, or publisher’s aggregate accrued earnings, the author (or agent) agrees to remit a payment back to Smashwords within 20 days of notification to adjust the overpayment. Sales transacted at the Smashwords.com web site are reported in real time. Sales reporting for sales transacted via Smashwords retail distribution partners (B&N, Sony, Amazon, Shortcovers, etc) are reported when the retailer reports back to Smashwords, usually once per quarter.
8a. Tax withholding: The United States Internal Revenue Service (IRS) requires Smashwords to withhold taxes from net proceeds in cases where either proper tax information is not provided. For US residents and US businesses, Smashwords requires a SSN or EIN, plus a valid US postal mailing address. If US-based authors and publishers do not provide valid tax id information, then the IRS requires Smashwords to withhold 28% of earnings which Smashwords must remit to the IRS within days of transacting the payments to authors/publishers. For authors and publishers outside the US, the automatic withholding rate is 30%. Many countries have tax treaties with the United States that entitle residents and businesses located in these countries to receive either partial or full exemption from the 30% tax withholding. To qualify, authors and publishers should first check if their country has a tax treaty (see the Support Center link below). If a tax treaty is in effect, then the author or publisher must apply for and obtain an ITIN from the US IRS. Following receipt of the ITIN, the author or publisher must complete the W8-BEN form (or related form, see IRS instructions), sign it, and return it to Smashwords. Learn more by visiting your Payee page at https://www.smashwords.com/account/payee. Additional information can be found in the Smashwords Support Center for links to forms and additional information - http://www.smashwords.com/about/supportfaq#Publishing
9. Author’s Warranties. The warranties and representations contained in this Agreement extend to Author and its licensees and successors and assigns. By uploading content to Smashwords, you agree that any violation of the warranties below may result in immediate deletion of your account and the forfeiture of accrued earnings.
9a. By submitting Your Work to Smashwords for publication, You, the Author or the Author you represent (if you are an Agent or Publisher) author’s Publisher or Agent or Distributor, warrant and represent that the work (the book) is complete and the author:
• is the only author of the Work;
• is the sole owner of the rights herein granted;
• has 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 agrees not to do any of the aforementioned without first unpublishing the work at Smashwords
• has full right, power, and authority to enter into this Agreement and to grant the rights granted herein.
• the content you are uploading to Smashwords meets the definition of "a book" or a complete short story
9b. You further warrant 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 (this includes publishing a person's private email address without their permission);
• 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
• violate state and federal laws.
• advocates hateful, discriminatory or racist views or actions toward others
• advocates or condones violence against another person, whether or not the other party is a willing participant
• advocate illegal activities
• advocates the use of Private Label Rights (PLR) content to make money on the Internet, or the modification of such content for the creation of Internet content
• contain images or illustrations depicting individuals perpetrating graphic violence upon another individual or individuals
• Fine art books of a non-erotic nature that contain nudity may be accepted on a case by case basis at the sole discretion of Smashwords and/or its retail partners
• contain hyperlinks to affiliate marketing pages, especially if the ebook is published for the sole intent of publishing hyperlinked content that directs readers to affiliate marketing pages
• advocate or promote "systems" about how to make money on the Internet by publishing ebooks
• advocate or promote "get-rich-quick" schemes and systems
• contains SEO keyword spam, either in your manuscript or your metadata tags
• contains advertisements for products or services, or is intended to act as an advertising or upselling vehicle for products or services
• contains incomplete information and prompts the reader to access external resources or services that require registration or payment
• is an incomplete book for the purpose of promoting the purchase of the complete book elsewhere or on Smashwords. Books priced at FREE are held to this same standard.
• makes false, misleading or inaccurate claims or promises in the book or book description
• is not the same book you previously published at Smashwords, then republished as a new book for the sole purpose of having it appear as a new book again. You must upload all new versions of previously published Smashwords books via the Dashboard's "upload new version" link.
9c. You further warrant the book meets the following standards for originality:
• this is not a public domain work;
• the book does not include word-for-word scrapes - or is not a compilation - from Wikipedia or other public domain, government or commercial services;
• your books do not and will not appear elsewhere on the Internet authored by people other than yourself or by pen names (pseudonyms) different from your pen name at Smashwords;
• none of your book content, either in part or in its entirety, is sourced from "Private Label Rights" articles (a.k.a. "PLR"), article "spinners," books rewritten from PLR, or ebooks or information sources which license the same content to other people;
• you're not uploading generic, undifferentiated works (such as "101 Household Cleaning Tips"). If it's not 100% original, or if it looks like PLR, it's not allowed on Smashwords.
• does not contain or comprise machine-generated language translations (all translated books must be human-translated and edited, not translated by language translation software such as Google Translate).
9d. You further warrant the book represents a complete work:
• this is not an unfinished work-in-progress;
• the uploaded file is not a partial sample or sample chapter, or is not a collection of sample chapters, or not simply a catalog advertising other books or products
• the work is complete and self-contained, and does not try to upsell the user to purchase, or register for, access to information that should have been contained in the book;
• the title meets the definition of "book" or "story." Short incomplete ramblings or works that read more like brochures than books are not allowed.
• the uploaded book represents a complete story with a beginning, middle and end. Exception: Serials are allowed. Each serial cover image should be different, even if the only difference is a notation on the cover image about the serial's position or episode number in the series. To avoid customer confusion, we recommend it should be clearly identified as a serial in the book description and the serial episodes should be linked together using the Smashwords Series Manager tool.
9e. Special guidelines for erotic literature:
Smashwords has always allowed a wide range of erotic literature, and has been a strong industry advocate to protect the ability of authors and publishers to publish legal erotica, and for readers to enjoy it. Like all publishers at Smashwords, erotic literature authors and publishers are held to all the requirements listed above and below in the Smashwords Terms of Service. For the benefit of our erotica authors and publishers, we've created this special breakout section in the ToS to provide additional guidance unique to erotic literature. We understand that there are many gray areas when it comes to erotic content, so any attempt to define black and white policy is fraught with risk that it might be unevenly or inconsistently applied. In the spirit of providing the greatest possible transparency, we define what we can define. These extra guidelines below are intended to help authors and publishers maximize the distribution of their erotic content; help avoid crossing lines that would be detrimental to their publishing and/or detrimental to their fellow community of professional erotic writers; and avoid publishing content that would be detrimental to their relationship with retailers, library partners and Smashwords. These guidelines are subject to change. As you'll see below, a few taboo categories have been identified as allowed at this time but not encouraged. These categories should be considered "under watch" and subject to additional review scrutiny or removal, and subject to future policy changes due to legal or business considerations, or subject to policy change if too many of the publishers in these discouraged categories push the limits of acceptability, or subject to individual title or publisher removal if an individual publisher publishes high volumes of this discouraged content or pushes other limits of acceptability. If you believe your titles were removed in error, please contact the Smashwords Support team by clicking the "Support" link below and request a reevaluation. These guidelines will be enforced at the sole discretion of Smashwords. Thank you for your understanding as we work to preserve the greatest level of publishing freedom for our professional erotic writers and publishers.
• Neither the book cover nor the book interior of erotic content may contain graphic images of nudity (either photographic or illustrated) or persons involved in sex acts
• Erotica authors and publishers must categorize their books under fiction: erotica when uploading to Smashwords, and must maintain these categories. If an author or publisher miscategorizes erotic content under non-erotic categories, they risk either removal of the work or account termination, at the discretion of Smashwords.
• Smashwords recommends that book descriptions and titles for erotic literature should be kept "PG-13." Excessive profanity in book descriptions may lead to further scrutiny and review, or blocked distribution or removal from Smashwords.
• Smashwords has a zero tolerance policy for underage erotica (characters under age 18), and this policy has been in effect since the beginning of Smashwords in 2008. Underage erotica is strictly forbidden, and the upload of such will lead to immediate account termination. In erotic literature, children or underage minors cannot be engaged in sexual acts or situations, bear witness to such situations, be shown considering sexual acts, or be shown thinking about sexual acts.
• "Barely legal" erotica is strongly discouraged, and is subject to additional review and may be removed without notice at the sole determination of Smashwords, especially if characters are in situations - or have mannerisms - that suggest that the characters are actually underage.
• Rape erotica, where the predominant theme is rape violence for titillation, is strongly discouraged, and is subject to additional review and may be removed at the sole determination of Smashwords.
• Scat erotica is prohibited.
• Snuff and necrophilia erotica is prohibited
• Bestiality erotica is allowed but not encouraged. A one-off title is more likely to be acceptable than if a publisher is publishing dozens or hundreds of such titles. At Smashwords discretion, such content may be removed or accounts closed.
• Incest and pseudo-incest (sexual relations among non-biologically related relatives and siblings) erotica is allowed, but it will be blocked by some retailers and library aggregators.
10. End Users. “End-Users” include authors, publishers and customers. Customers are those who pay whichever fee is set by the Author to purchase or download a Work. Customers are allowed to use each copy of the Work for their personal enjoyment 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:Free works and sample works published at Smashwords are the copyrighted material of the author or publisher, and therefore are not authorized for redistribution without prior written consent from Smashwords. Third parties are not authorized to download, host and otherwise redistribute Smashwords books without prior written agreement from Smashwords. Directory services and affiliate marketers may reproduce the metadata information found on each book's book page (cover image, book description, price, etc.) provided hyperlinks direct visitors to the Smashwords book page, and provided users are not charged for access to these listings, and are not required to register their personal information to gain access to these listings.
10b. Fees and Services. By using the Site the End User ebook customer is agreeing to pay the fees as presented by Smashwords and set by the Author or Publisher 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. Author, Publisher and Customer Conduct. 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. While using the Site, Services or Work, End Users agree to not:
• violate any laws, third party rights, or any policies which we have posted on the Site from time to time;
• upload any material which violates this Terms of Service;
• 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;
• use robots, spiders, shills or other methods in an attempt to unfairly game the site's ranking systems for downloads, reviews and sales, or hire others to do the same
• engage in advertising, marketing, spam, chain letters, pyramid schemes or money laundering 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;
• copy, modify, or distribute content from the Site, or Smashwords’ copyrights and trademarks;
• engage in abusive or profane behavior toward Smashwords, its employees, its authors, fellow users or retail partners; or
• threaten Smashwords or Smashwords retail partners with legal action due to inaccurate book listings or failure to remove books in a timely manner (visit https://www.smashwords.com/about/supportfaq#error to learn the process for correcting errors).
Without limiting other remedies, we may limit, suspend, or terminate the Smashwords member accounts, revoke earnings, 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 or legal liabilities, or acting inconsistently with the letter or spirit of our policies.
11. Ownership. You acknowledge and agree that the Smashwords 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 at any time without notice. Registered Smashwords members may cancel their membership at any time, and published Smashwords authors may unpublish their book listings at any time. However, purchased books will not be removed from customers' accounts, either at Smashwords or at Smashwords-supplied retailers. When an author or publisher unpublishes a book at Smashwords, this causes automated systems at Smashwords to transmit takedown notices to Smashwords retailers, which usually go out once per week. It typically takes anywhere from two days to two weeks for Smashwords retail partners to remove listings once we notify them. If a Smashwords retailer has failed to remove your book within three weeks, see the Smashwords FAQ for instructions on how to notify Smashwords so we can help correct the error: https://www.smashwords.com/about/supportfaq#error
13a. General. You (Author, Publisher or End User) agree to 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 NO CASE SHALL SMASHWORDS OR ITS RETAILERS BE LIABLE FOR ERRORS OF ANY KIND THAT RESULT IN SHIPMENT OR AVAILABILITY DELAYS, MISPRICINGS, OR INACCURATE OR INCOMPLETE PRODUCT LISTINGS. It is the Author/Publisher's responsibility to monitor retailer listings and report errors to Smashwords, in which case Smashwords on a best efforts basis will strive to work with the retailer to correct the error. 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 exceed the amounts collected by Smashwords for the Author's book in question.
15a Entire Agreement. This Agreement is the entire agreement between the parties concerning the subject matter hereof.
15b 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.
15c No Agency. No agency, partnership, joint venture or other joint relationship is created hereby.
15d 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).
15e 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.
Anti-Spam Policy and Enforcement
Smashwords does not engage in spam, nor does it share, rent or sell the personal contact information of its members with third parties.
Smashwords authors are prohibited from promoting their works via spam email (sure signs of spam: false "senders" or "reply to" addresses, inoperable or nonexistent unsubscribe/remove options, multiple receipts of the same email, superfluous text designed to confuse spam filters, and misleading subject lines). Smashwords authors who are found to be spamming will risk termination of their account, removal of their works and forfeiture of accrued earnings. If you believe you have been the recipient of a spam email from a Smashwords author, please forward the entire email message, with full headers on, to Mark Coker of Smashwords at first initial second initial at smashwords dot com.
Digital Millennium Copyright Act (DMCA) Notice Policy
Smashwords is a distributor, and does not own the works uploaded to Smashwords. When authors, agents or publishers upload material to Smashwords, they certify to Smashwords their agreement to this Terms of Service, in which they certify they are legally permitted to upload such works. Allegations of copyright violations against Smashwords authors, agents and publishers are extremely rare. Nevertheless, Smashwords maintains a zero-tolerance policy regarding copyright infringement and we welcome infringed parties to notify us if they believe their material is being distributed by Smashwords.
If you feel that content posted on the Smashwords Site infringes on your copyright(s), please immediately contact the Smashwords support team by clicking the "comments/questions" link at the top of any page.
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.
To help us help you, 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, such as a direct hyperlink to the infringing book listed at Smashwords; (4) hyperlinks, if available, to the original author's (the infringed party) work to help Smashwords investigate and support your case; (5) 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 may remove the Author’s Work and reserves the right to remove any and all information about the Author, the Author’s Work or the Publisher 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.
Thank you for reading. Your comments and feedback are welcome.
Smashwords Corporate Office Address:
15951 Los Gatos Blvd., Ste 16
Los Gatos, CA 95032