Terms and Conditions

This document (the “Agreement”) sets forth the terms and conditions that you are agreeing and stipulating to by using the services offered by MindStir Media, LLC, and said terms and conditions supplement those contained within publishing contract (“Publishing Contract”) entered into by you (hereinafter “You”) and MindStir Media, LLC (hereinafter “MindStir,” and collectively with You, “We” or “Us”).

This Agreement contains the terms and conditions under which MindStir offers and provides certain book publishing, distribution, printing, promotional and other services (the “Services”) through the MindStir website (the “Website”) or through other websites and services operated by or on behalf of MindStir and its Licensees (as defined below). By indicating acceptance to this Agreement or by using or accessing the Services, including through the submission of materials (and the print, text, associated artwork and underlying works embodied therein) to MindStir, you agree to be bound by the terms and conditions described herein and all terms incorporated by reference. If you purchase a service directly from the MindStir website, we may send you a Publishing Contract afterwards in order to obtain your signature.

THIS AGREEMENT CREATES A BINDING AND LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND US, WHETHER YOU ARE ACTING IN YOUR INDIVIDUAL CAPACITY OR AS THE AUTHORIZED REPRESENTATIVE FOR AN AUTHOR, WRITER, PUBLISHER, OR CORPORATION, IN WHICH CASE “YOU” SHALL REFER TO THE AUTHOR, WRITER, PUBLISHER, OR CORPORATION ON WHOSE BEHALF YOU ARE ACTING AND AUTHORIZED TO ACT. THEREFORE, PLEASE READ THIS AGREEMENT CAREFULLY AND CONSULT WITH YOUR OWN BUSINESS AND LEGAL ADVISORS BEFORE USING THE SERVICES OR OTHERWISE ACCEPTING THIS AGREEMENT.

MindStir reserves the right to add, delete and/or modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on the Site. In the event of material changes to the terms of this Agreement, we will send you notice by email or by such other means we deem appropriate at our sole discretion. If any modification is unacceptable to You, your only recourse is to terminate your account and discontinue use of the Services (“Termination Notice”). Your continued use of the Services, following posting of a change notice or new agreement on the Site or otherwise sending you a notice, or Your failure to submit a Termination Notice within fifteen (15) days of the date we provide such notice, will constitute your binding acceptance of the changes.

Notwithstanding the preceding sentence, no modifications to this Agreement will apply to any dispute between you and MindStir that arose prior to the date of such modification.

YOU ARE RESPONSIBLE FOR MAINTAINING A VALID E-MAIL ADDRESS ON FILE WITH MINDSTIR FOR SO LONG AS YOU AVAIL YOURSELF OF ANY SERVICES.

1. Certain Definitions

The following capitalized terms shall have the following meanings for purposes of this Agreement:

(a) “Author Content” means the manuscripts, artwork, images, text, descriptive materials and other content that you have submitted to us in connection with the Services. Any Author Content you submit must be owned or controlled by you and/or have been cleared by you for all purposes and rights granted and authorized hereunder by you.

(b) “MindStir Widget” means a software application available on the Website that you may embed on third-party websites to facilitate the distribution, communication to the public or other transmission of the Author Content via the Internet through such third-party websites.

(c) “Books” means any form of book embodying the Author Content, including print books, audio books, ebooks and other digital and physical formats of any kind.

(d) “Copyright Management Information” means the digital information conveying information regarding Digital Books, such as your name, the title of the applicable published work and the publishing MindStir name.

(e) “Licensee” means any third party licensee, such as Amazon, BarnesandNoble.com, BooksAMillion.com, Powells.com, Walmart.com, or others, associated or affiliated with MindStir and used, directly or indirectly, for marketing, distribution, printing and sale or other use of the Author Content pursuant to the terms of this Agreement.

(f) “Territory” means throughout the universe, or such more limited territories to which you specifically limit the territory in the registration process.

2. Authorization

You hereby grant MindStir and the Licensees the authority to undertake all actions reasonably necessary to facilitate the delivery of Services on your behalf and to comply with the obligations, promises and covenants contained herein.  This grant of authority to MindStir and the Licensees regarding the Author Content is not exclusive to MindStir and/or the Licensees, and said authority shall remain in effect on a non-exclusive basis throughout the duration of this Agreement and/or until this Agreement is terminated according to provisions contained herein.  In granting this non-exclusive authority, you hereby authorize MindStir and the Licensees to:

(a) Reproduce, format, reformat, digitize, and convert the Author Content into Books in any form or format;

(b) Distribute, publicly perform, publicly display and otherwise make available, for promotional purposes and without remuneration to You, portions of the Author Content (“Samples”) in any form of media, including but not limited to digital media, printed media and audio, and via a MindStir Widget you or any person authorized by you may place on any website, to promote the license, sale and distribution of Books;

(c) Promote, sell, sublicense, distribute, and deliver the Books and associated metadata to purchasers and resellers who may use such Books and associated metadata in accordance with usage rules approved by us and pursuant to any limitations imposed by the distribution preferences you designate in your account (e.g., only sales of permanent digital or physical files);

(d) Use and authorize others to license the use of and sale of the Author Content in connection with all manner of book services, such as, but not limited to, sales or licenses of Books as permanent digital files, digital files made available via subscription services, digital files made available via library services, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices), and re-installs to customers who have previously purchased a specific Book;

(e) Make available and authorize Licensees to make available the Books and related Author Content in all territories in which Licensees deliver, distribute, or sell books in any form or format, including audio books and ebooks;

(f) Print, distribute, and sell, and authorize Licensees to print, distribute, and sell, the Books in any manner authorized in connection with the Services, including directly to you, through our Website, through kiosks, through distributors and retailers, through third-party and specialized websites and estores, through your Bookshop page, and through other sales channels as determined by us;

(g) Allow and authorize others to allow limited sharing of Books between existing and potential customers for promotional purposes;

(h) Use and distribute Copyright Management Information as embodied in Books;

(i) Display and electronically fulfill and deliver Authorized Artwork used in connection with the Author Content for personal use, solely in conjunction with the applicable Books;

(j) Use the Authorized Content, Authorized Artwork, and metadata as may be reasonably necessary or desirable for us to exercise our rights under this Agreement;

(k) Authorize Licensees to remove or modify the cover artwork, metadata and product description you provide for your Books for any reason without notification.

(l) Make necessary changes to this agreement to comply with Licensees’ rules and regulations not mentioned above; and

(m) Authorize our Licensees to perform any one or more of the activities specified above.

3. Term and Termination

The term of this Agreement will commence when you first access or use the Services or otherwise accept this Agreement and will continue, unless and until terminated by either you or us, upon twenty-four (24) hours written notice (the “Term”), which notice, if sent by (a) MindStir, may be sent to you at the last e-mail address you provided to MindStir and (b) you to MindStir, must be sent only to the following e-mail address: info@mindstirmedia.com with the following information: (i) your username; (ii) the e mail address associated with your Account; and (iii) “Termination of Digital and Print Distribution Agreement” in the subject line of the email. You may also request removal from your account any specific Book titles previously submitted under this Agreement by sending an e-mail requesting such removal to info@mindstirmedia.com with your username, the e mail address associated with your Account, and the book title(s) for which you are requesting removal. Once you make your request to have a Book title removed, our team will begin working to remove the title, but note that it may take 90 days or longer for the titles to be removed from retail outlets around the world. Until we are able to remove such title, the rights and licenses granted under this Agreement will continue to apply to such title. Sections 1, 4, 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 will survive any termination of this Agreement for any reason.

4. Payments to You

(a) MindStir will pay you a royalty for each eBook sale that takes place through the distribution network, including Amazon.com and BarnesandNoble.com: Refer to the example royalty payouts page here: https://mindstirmedia.com/self-publish-a-book-royalties/.

(b) MindStir will pay you a royalty for each Print On Demand sale (Paperback/Hardcover) that takes place through Ingram, the print book distributor that MindStir uses to reach thousands of retailers such as Amazon.com, BarnesandNoble.com, etc: Refer to the example royalty payouts page here: https://mindstirmedia.com/self-publish-a-book-royalties/.

(c) To the extent that you owe any amounts to MindStir as a consequence of this agreement, including any amounts owed under Section 6 below, MindStir shall have the right to deduct all or a portion of such amounts from any amounts otherwise then payable to you.

(d) In the event that MindStir overpays royalties, such as in cases when fraudulent or unauthorized purchases are charged back to MindStir after payments are made, then MindStir will deduct the funds owed from monies payable to you hereunder. If the amount owed exceeds your accrued monies, you agree to remit a payment back to MindStir within 20 days of notification to adjust the overpayment.

(e) In the event that MindStir receives notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with your warranties and representations, or in the event that MindStir has, in its reasonable business judgment, reason to suspect that your Account has been subjected to and/or involved in fraudulent activities, MindStir reserves the right to discontinue posting of monies to your Account and block your ability to otherwise withdraw funds there from, until satisfactory resolution and/or explanation of the suspect activities is obtained. To the extent that any fraudulent activities are determined to be caused by your or your affiliates actions or omissions, any costs incurred by MindStir (including legal fees and costs) in connection therewith may, in addition to its other remedies, be deducted by MindStir from any monies otherwise payable to you hereunder. Certain of MindStir’s licensees may also have policies related to fraud and suspected fraudulent activities and you agree that such policies shall be binding upon you hereunder.

5. Your Obligations Regarding Rights in Author Content

Any Author Content you submit must be owned or controlled by you or you must have sufficient rights therein to submit the Author Content and grant the rights granted under this Agreement with respect to such Author Content, such that your submission and our exercise of the rights granted under this Agreement will not infringe upon or violate the rights or any third party. You or a licensee (on your behalf) will obtain and pay for any and all clearances or licenses required in the Territory (or any portion thereof) for the use of the Author Content and any related metadata as intended by this Agreement. Specifically, and without limiting the generality of the foregoing, you or a licensee on your behalf will be responsible for and shall pay (i) any royalties and other sums due to writers, authors, co-authors, artists, copyright owners and co-owners, publishers and any other publishing royalty participants from sales, distribution or other uses or exploitation of the Books, (ii) all payments that may be required under any collective bargaining agreements applicable to you or any third party, and (iii) any other royalties, fees and/or sums payable with respect to the Author Content, metadata or other materials provided by you to us.

6. Payments to MindStir

In consideration of the Services rendered hereunder, you shall pay to MindStir the fees in effect at the time you request the particular Services, as set forth on the Website, in this Agreement, or as otherwise made available to you (the “MindStir Fees”). MindStir’s services are offered on a non-refundable basis; refunds will NOT be offered under any circumstances. The MindStir Fees may be amended from time to time by MindStir in its sole discretion. If any amended MindStir Fees apply to you, MindStir will provide you notice of such amended MindStir Fees at least fifteen (15) days prior to the effective date of the amendment. Your continued use of the Services after such effective date constitutes your agreement to the amended MindStir Fees. If you do not agree to such amended MindStir Fees, your sole option is to terminate this Agreement in accordance with the termination procedures set forth in Section 3 above. The amended MindStir Fees will apply to all Services rendered after the effective date of such amendments. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of Your MindStir Account by you or anyone else using your Account. It is your responsibility to notify Company if your payment method has changed by making the appropriate changes to your MindStir Account settings. If you do not provide a valid payment method your Services may be disconnected or interrupted.

A listing of MindStir’s current fees and charges is available at our website. If you request revisions to your interior layout after it has been produced by our designers, you will incur a fee of $2 per change — this allows us to properly compensate our design team for their time during the revision process. If you request revisions to your print book after your approval of your design files and after it has been sent to the printer, you will incur a $125 revision fee.

You may buy Author Copies at these rates.

Manuscripts exceeding 100,000 words or 400 pages will incur additional fees for formatting, printing and/or editing. We can only print books with 1,000 pages or less.

7. Right to Withdraw Material

You have the right, at any time during the Term, to withdraw your permission for the sale or other uses of specified Book titles in your account, upon 90-day written notice to us (“Withdrawal”). Following our receipt of your notice of Withdrawal, we will use reasonable efforts to advise our Licensees that they are no longer authorized to offer the sale or other use of (the “Withdrawn Titles”). Please note, however, that it may take 90 days or longer for the title(s) to be removed from certain Licensees, especially foreign retailers and Amazon, and that the rights and licenses granted under this Agreement will continue to apply to such title until we are able to remove such title or change the availability to out of stock or a similar unavailable status. Sending of your notice of Withdrawal will not limit your responsibility for sales and other uses of the Author Content that occurred prior to the implementation of such Withdrawal and will not limit in any way the rights of end users who have acquired the Author Content. MindStir is not responsible for, and has no liability for, any delays or refusal of our Licensees in removing the Author Content. Some online retailers such as Amazon have a history of keeping the listing for titles intact but limiting the availability after Withdrawal. Brick and mortar stores are also allowed to sell through any remaining stock, which will have already been accounted for through MindStir’s sales reporting.

8. Names and Likenesses; Promotional Use and Opportunities

(a) Names and Likenesses. You hereby grant to us, during the Term, the right to use and to authorize our Licensees to use the names and approved likenesses of, and biographical material concerning any writers, authors, artists, or publishers, as well as Book or publication name, in any marketing materials for the sale, promotion and advertising of the applicable Book, which is offered for sale or other use under the terms of this Agreement (e.g., an author, writer, publisher, or artist name and likeness may be used in an informational fashion, such as by textual displays or other informational passages, to identify and represent authorship and publishing credits of the applicable author, writer, or artist in connection with the exploitation of applicable Book).

(b) Promotion. You hereby grant to us and our Licensees the right to market, promote and advertise the Books as available for purchase or license, as we and they determine in our and their discretion.

9. Ownership

Subject to our rights hereunder or under any prior agreement between you and us, as between you and us, you own all right, title and interest in and to (i) the Author Content , (ii) the Books, (iii) the Samples, (iv) all copyrights and equivalent rights embodied therein, and (v) all materials furnished by you.

10. Monitoring of Your Content; Removal of Content from Website

(a) Monitoring. MindStir does not control or have the right to control the Author Content and does not have any obligation to monitor the Author Content for any purpose. MindStir may choose, in its sole discretion, to monitor, review or otherwise access some or all of the Author Content, but by doing so MindStir assumes no responsibility for the Author Content, no obligation to modify or remove any inappropriate elements of the Author Content, or to monitor, review or otherwise access any other author’s content or artwork.

(b) Right of Removal. MindStir reserves the right, to remove and not use or exploit any of the Author Content from the Website in its sole and absolute discretion, for any reason or for no reason, including if MindStir believes such content: (i) is offensive, harmful. pornographic, obscene, defamatory unlawful, indecent, inflammatory, false, misleading, fraudulent or otherwise objectionable; (ii) is the subject of a dispute between you or us and a third party; (iii) is content to which you cannot document your rights therein upon MindStir’s request; (iv) violates or is alleged to violate the intellectual property rights, privacy rights or other rights or protected interests of a third party; (v) is the subject of a takedown notice by a party claiming to own the rights therein, or (vi) is the subject of any fraudulent activity, or for any other reason in MindStir’s sole and absolute judgment is necessary to protect the business interests of MindStir and any of its business partners or Licensees. Our partners, retailers and Licensees may reject content for any reason (including but not limited to racist or sexual content, hyperlinks, SEO spam, Public Domain material or infringing/offensive/prohibited images or content). MindStir’s service has been rendered once we have formatted and delivered the content, and if your content is rejected by any partner for any reason, MindStir will have no liability to you, and MindStir will not offer any refund or credit for any services (including but not limited to conversion, formatting, cover design, and distribution).

At its sole discretion, MindStir may also remove the Author Content from distribution and the Website and/or cease working with you altogether if you are abusive, threatening, or rude to any MindStir workers or the company in general. If you provide false or intentionally misleading information to any MindStir workers, agents or to the public concerning MindStir or your book, MindStir may also choose to remove your Author Content from distribution and the Website and/or cease working with you altogether. MindStir shall have no liability to you for the removal of any of the Author Content from the Website or any Licensee website or service. The removal of any of the Author Content shall not relieve MindStir of the obligation to pay you any royalties that may have accrued prior to the removal of the Author Content.

(c) No Automatic Termination Due to Removal. This Agreement shall not be terminated automatically by MindStir’s removal of the Author Content from the Website or Licensee’s websites or services. In order for this Agreement to be terminated following the removal of any of the Author Content, you must send MindStir a notice of Termination or MindStir must send you a notice of termination.

11. Account Information; Disclosures

(a) Your Account Information. In order to access some features of the Website, including your account information, you will have to create an online account (“Account”). You hereby represent and warrant that the information you provide to MindStir upon registration will be true, accurate, current, and complete. You also hereby represent and warrant that you will ensure that your Account information, including your e-mail address, is kept accurate and up to-date at all times during the Term of this Agreement.

(b) Password. As a registered user of the Services you will have login information, including a username and password. Your Account is personal to you, and you may not share your Account information with, or allow access to your Account by, any third party, other than an agent authorized to act on your behalf. As you will be responsible for all activity that occurs under your Account, you should take care to preserve the confidentiality of your username and password, and any device that you use to access the Website. You agree to notify us immediately of any breach in secrecy of your login information. If you have any reason to believe that your Account information has been compromised or that your Account has been accessed by a third party not authorized by you, then you agree to immediately notify MindStir by e-mail to  info@mindstirmedia.com. You will be solely responsible for the losses incurred by MindStir and others (including other users) due to any unauthorized use of your Account that takes place prior to notifying MindStir that your Account has been compromised.

(c) Disclosure of Information. You acknowledge, consent, and agree that MindStir may access, preserve, and disclose your Account information and the Author Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary or appropriate to (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to a claim that any of the Author Content violates the rights of third parties; (iv) to respond to your requests for customer service; or (v) to protect the rights, business interests, property or personal safety of MindStir and its employees and users, and the public, and as otherwise described in the MindStir Privacy Policy.

12. Prohibited Use of the Website and Licensee Websites and Services

You agree not to use the Website, the Services, and any services provided by Licensees, for any unlawful purpose or in any way that might harm, damage, or disparage MindStir, its Licensees or any other party. Without limiting the preceding sentence and by way of example and not limitation, you agree that you will not, whether through the Website, our Licensees or the Author Content, do or attempt any of the following:

(a) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Website or any other part thereof, except and solely to the extent permitted by this Agreement, the features of the Website or by law, or otherwise attempt to use or access any portion of the Website other than as intended;

(b) Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit, any portion of the Website, use of the Website, access to the Website or content obtained through the Website, as a result of your being granted permission to upload the Author Content to the Website;

(c) Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Website, features that prevent or restrict the use or copying of any part of the Website or features that enforce limitations on the use of the Website;

(d) Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (including, without limitation, rights of privacy and publicity) of third parties or MindStir’s workers or agents;

(e) Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortuous, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;

(f) Create a false identity or impersonate another for the purpose of misleading others as to your identify, including, but not limited to, providing misleading information to any feedback system employed by MindStir;

(g) Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful, damaging or deleterious software programs;

(h) Interfere with or disrupt the Website, networks or servers connected to the Website or violate the regulations, policies or procedures of such networks or servers;

(i) Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in the Author Content; or

(j) Use the Website in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.

13. Availability of Services

The Services are provided on an “as is,” “as available” basis, and MindStir may make changes to or discontinue any aspects of the Services and any of the features, media, content, products, software or services available via the Website, at any time and without notice and without liability to you. The features, media, content, products, software or services available on and through the Website may be out of date, and MindStir makes no commitment to update any aspect of the Website. MindStir makes no representations and warranties with respect to availability or performance of the Website and may discontinue the Services at any time with or without notice. You are solely responsible for maintaining back-up copies of any elements of the Author Content uploaded to the Website or otherwise delivered to MindStir as physical product.

If you purchase a package that includes mentoring from J.J. Hebert, you are allowed to request up to three (3) mentoring calls per calendar year.

The average turnaround time for publishing is approximately 150 days after receipt of your manuscript and materials, but this is not a guaranteed timeframe.

14. Additional Representations and Warranties of the Parties

(a) Mutual Representations and Warranties. Each party represents and warrants to the other that it:

(i) is authorized to enter into this Agreement on the terms and conditions set forth herein.

(ii) will not act in any manner that conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by the party will interfere with the performance of its obligations under this Agreement.

(iii) shall perform its obligations hereunder in full compliance with any applicable laws, rules, and regulations of any governmental authority having jurisdiction over such performance.

(b) Representations and Warranties by You. You represent and warrant to MindStir that:

(i) You represent and warrant that you have the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to the Author Content and metadata. For the avoidance of doubt, if you are acting on behalf of an author, writer, publisher, or corporation, you hereby represent and warrant to MindStir that you are fully authorized to enter into this Agreement on behalf of such author, writer, publisher, or corporation and to grant all of the rights and assume and fulfill all of the obligations, covenants, and representations and warranties set forth in this Agreement.

(ii) You represent and warrant that you own or control the necessary rights in order to make the grant of rights, licenses and permissions herein, that you have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within the Author Content, and to use such individual’s identifying or personal information (to the extent such information is used or contained in the Author Content) as contemplated by this Agreement. Furthermore, you represent that the exercise of such rights, licenses and permissions by us and our Licensees shall not violate or infringe the rights of any third party.

(iii) You represent and warrant that the Author Content does not plagiarize or pirate any other work or infringe upon or violate any copyright, trademark, trade secret or other proprietary right.

(iv) You represent and warrant that the Author Content does not contain SEO keyword spam, either in your manuscript or your metadata tags.

(v) You represent and warrant that the Author Content does not contain multiple hyperlinks to advertisements or affiliate marketing pages.

(vi) You represent and warrant that the Author Content does not contain any advertisements of content that is primarily intended to advertise or promote products of services.

(vii) You represent and warrant that the Author Content does not violate any right of privacy that is libelous or violate any personal right or other right of any kind of any person or entity.

(viii) You represent and warrant that the Author Content does not violate state and federal laws or advocate illegal activities.

(ix) You represent and warrant that the Author Content does not advocate hateful, discriminatory or racist views or actions toward others.

(x) You represent and warrant that any and all instruction, material, or advice contained in the Author Content is not likely to result in injury and the Author Content includes appropriate warning and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice, and that the Author Content shall not contain any errors or omissions in any recipe, formula, design, or instruction which, if followed, might harm the user.

(xi) You represent and warrant that the Author Content is not a public domain work (unless you are the true author) and is not sourced or copied, either in part or in entirety, from commercial services, articles, or information sources which have been licensed to others.

(xii) You and we represent and warrant that we will not act in any manner which conflicts or interferes with any existing commitment or obligation of the other party, and that no agreement previously entered into by you or us will interfere with our performance of our obligations under this Agreement.

(xiii) Each party represents and warrants that it shall perform its obligations hereunder in full compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance.

(xiv) We make no guarantees whatsoever about there being any minimum sales or uses of any Books.

15. No Representations and Warranties With Respect to Sales and Distributions

MindStir does not guarantee retail availability of your book, as each bookseller/retailer stocks books at their own discretion, based on their needs and chosen buying schedules. Furthermore, Mindstir does not guarantee that retailers will always sell the book for the retail price set by you or Mindstir. Retailers will receive the suggested retail price set by you or Mindstir, but they can decide to discount or markup copies at their own discretion. MindStir also reserves the right to adjust, without prior notice to the Author, the Wholesale Discount provided to the retailers if necessary to comply with retailer requirements.

MindStir makes no guarantees regarding the minimum number of unit sales or uses of the Author Content or regarding any revenue to be earned under this Agreement. In addition, we cannot guarantee that Licensees will perform under any agreement they enter into with MindStir for the sale, distribution or licensed use of the Author Content, including by paying the royalties they owe us for the distribution of the Author Content. If a Licensee refuses to pay us for the use of the Author Content, you agree that you will assume responsibility for collecting any payments that may be due from such non-compliant Licensees for any sale, distribution or licensed use of the Author Content if such third party fails or refuses to pay such amounts to MindStir upon MindStir’s request.

16. Indemnification

(a) Indemnification. You hereby indemnify, and hold us harmless from any and all damages, claims, liabilities, costs, losses and expenses (including, but not limited to, legal costs and attorneys’ fees) (collectively, “Claims”) arising out of or connected with any claim, demand, or action which arises out of any breach or alleged breach or violation of any of the warranties, representations, covenants or agreements made by you in this Agreement, including, but not limited to, your representations and warranties regarding noninfringement of any copyrights or any other rights in and to any other forms of intellectual property. You will reimburse us, on demand, for any payment made by us at any time with respect to any damage, liability, cost, loss or expense to which the foregoing indemnity applies. Pending the determination of any claim, demand, or action, we may, at our election, withhold payment of any monies otherwise payable to you hereunder in an amount which does not exceed your potential liability to us pursuant to this paragraph.

(b) Indemnification Request. If we make an indemnification request to you under this Section, we may permit or require you to control the defense, disposition or settlement of the matter at your own expenses, provided that you shall not, without our prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by MindStir or imposes any conditions or obligations on MindStir other than the payment of monies that are readily measurable for purposes of determining your monetary indemnification or reimbursement obligations to us. If we, in our reasonable and good faith judgment conclude that you are not capable of defending your or our interests against any Claims, then we shall have the option to control the defense in any matter or litigation through counsel of our own choosing to defend against any such Claim for which you owe MindStir an indemnification, and the costs of such counsel, as well as any court costs, shall be at your expense.

17. Copyright and Intellectual Property Infringements

Notice and procedure for making claims of copyright or other intellectual property infringements.

(a) MindStir respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Site or the MindStir Service.

(b) MindStir’s intellectual property policy is to (1) remove material that MindStir believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Site, and (2) remove any Products or Submissions posted to the Site by “repeat infringers.” MindStir considers a “repeat infringer” to be any user that has uploaded Products or Submissions to the Service and for whom MindStir has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such Products or Submissions. MindStir has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon MindStir’s own determination.

(c) Procedure for Reporting Claimed Infringement. If you believe that any Productions or Submissions made available on or through the Site or the MindStir Service have been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your communication must include substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;

(ii) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;

(iii) Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MindStir to locate the material;

(iv)Information reasonably sufficient to permit MindStir to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;

(v) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

(d) Designated Agent Contact Information. Notices of claimed infringement can be communicated:

Via E-mail:  info@mindstirmedia.com

(e) Counter Notification. If you receive a notification from MindStir that material made available by you on or through the Site or the MindStir Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide MindStir with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to MindStir’s Designated Agent through one of the methods identified in Section 11(d) of these Terms and Conditions, and include substantially the following information:

(i) A physical or electronic signature of the subscriber;

(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

(iii) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

(iv) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which MindStir may be found, and that the subscriber will accept service of process from the person who provided notification under Section 11(c) of these Terms and Conditions above or an agent of such person. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.

(f) False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that: [a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [MindStir] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

18. Disclaimers

(a) THE WEBSITE, THE SERVICES, AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

(b) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MINDSTIR AND ITS AFFILIATES, PARTNERS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND RELATING TO THE SERVICES, THE WEBSITE OR THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MINDSTIR OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. MINDSTIR AND ITS AFFILIATES, PARTNERS, LICENSORS, AND SUPPLIERS DO NOT WARRANT THAT THE WEBSITE OR ANY PART THEREOF, OR ANY SERVICES PROVIDED BY MINDSTIR, WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE WEBSITE OR ANY ASSOCIATED SITES OR APPLICATIONS, AND OFFER THE AUTHOR CONTENT VIA THE SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM, HANDSET, OR ANY OTHER DEVICE OR PERIPHERAL USED IN CONNECTION WITH THE WEBSITE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

19. Limitation of Liability; Basis of the Bargain

(a) MINDSTIR SHALL NOT BE LIABLE TO YOU FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. MINDSTIR SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY LICENSEE TO PAY MINDSTIR OR YOU ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF THE AUTHOR CONTENT, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH MINDSTIR OR OTHERWISE. MINDSTIR’S TOTAL LIABILITY TO YOU FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO YOU BY MINDSTIR FOR THE DISTRIBUTION OR LICENSING OF THE AUTHOR CONTENT DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR CLAIM AGAINST MINDSTIR.

(b) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MINDSTIR, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND MINDSTIR, MINDSTIR’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT MINDSTIR WOULD NOT BE ABLE TO OFFER ITS SERVICES TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.

20. General Provisions

(a) Relationship of the Parties. The parties hereto agree and acknowledge that the relationship between them is that of independent contractors. This Agreement shall not be deemed to create an agency, partnership or joint venture, and neither party is the other’s agent, partner, or employee.

(b) Entire Agreement. This Agreement and the Publishing Contract, if a Publishing Contract is issued, constitutes the entire understanding of the parties relating to the subject matter hereof.  In the event of conflict between this Agreement and an existing Publishing Contract, this Agreement shall be controlling. This Agreement cannot be changed or modified except as provided herein. A waiver by either party of any term or condition of this Agreement will not be deemed or construed as a waiver of such term or condition, or of any subsequent breach thereof. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable, such determination shall not affect any other provision hereof, and the unenforceable provision shall be replaced by an enforceable provision that most closely meets the commercial intent of the parties.

(c) Binding Effect. This Agreement will be binding on the assigns, heirs, executors, affiliates, agents, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.

(d) Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes on the delivery date if sent by electronic mail to the addresses provided to and by you upon registration with the MindStir Site, or as properly updated, or, in the absence of a valid electronic mail address, via any other method MindStir may elect in its sole discretion, including, but not limited to, via posting on the Website.

(e) Governing Law; Dispute Resolution. This Agreement will be governed and interpreted in accordance with the Laws of the State of New Hampshire applicable to agreements entered into and to be wholly performed in New Hampshire, without regard to conflict of laws principles. Any and all disputes arising out of this Agreement shall be resolved in the manner set forth in the Terms and Conditions.

(f) Rights Cumulative. To the extent permitted by applicable law, the rights and remedies of the parties provided under this Agreement are cumulative and are in addition to any other rights and remedies of the parties at law or equity.

(g) Headings. The titles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.

(h) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the parties hereto and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

(i) Assignment. MindStir may assign its rights and obligations under this Agreement at any time to any party. You may not assign your rights and/or obligations under this Agreement without obtaining MindStir’s prior written consent.