KOBO WRITING LIFE TERMS OF SERVICE

This is a binding agreement (“Terms”) between Rakuten Kobo Inc. (“Kobo”, “we” or “us”) and the individual (“you” or “Publisher”) who registers for Kobo’s digital publishing service program (“Kobo Writing Life” or “KWL”), as identified in Kobo’s records of such registration, for the publication of works in any written or audio electronic format (“eBook” or “Audiobook”, as applicable, or collectively “Work”). Kobo’s Terms of Use, Privacy Policy and Content Policy are incorporated into these Terms and are also binding on you. If Publisher is a corporate entity, the individual that accepts these Terms accepts them on behalf of the corporate entity under the express warranty and guarantee to Kobo that they are authorized to do so and are able to bind Publisher to these Terms, in which event “you” and “Publisher” shall instead be deemed to be the corporate entity. You may not use Kobo Writing Life unless you agree to the Terms.

SECTION 1. AMENDMENTS AND SECURITY.

1.1 Changes to these Terms. Kobo reserves the right, at its sole discretion, to change, modify, add, or delete portions of these Terms at any time as set out herein. These Terms may be changed unilaterally, but not retroactively, by Kobo from time to time by posting such changes on our website, and such changes shall become effective on the effective date noted on the website, which will be no fewer than thirty (30) days following posting for changes to rights or fees applicable to Kobo Writing Life.

YOU HAVE THE RIGHT TO CEASE YOUR PARTICIPATION IN KOBO WRITING LIFE AND WITHDRAW YOUR WORKS FROM SALE AT ANY TIME, INCLUDING IF ANY REVISED TERMS ARE NOT ACCEPTABLE TO YOU.

1.2 Security. You must be at least 18 years old or the legal age of majority in your place of residence in order to use Kobo Writing Life. When you create your Kobo Writing Life account, you must provide us with accurate and complete information and you must keep such information, including contact information, current at all times. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your account. You are solely responsible for the activity that occurs on your account, and you agree to keep your account login and password secure. You must immediately notify Kobo if your credentials are compromised or if you suspect any unauthorized use of your account.

SECTION 2. USE OF KOBO WRITING LIFE.

2.1 Delivery. During the period that you use Kobo Writing Life, you may provide Kobo with Works and the associated metadata. You are responsible for ensuring the accuracy of the Works, metadata, and their compliance with our Content Policy and Terms of Use. Kobo may at any time accept, reject, suspend or remove any Works that you have provided at its sole discretion, for any reason or no reason, including acting unreasonably.

2.2 Rights. You authorize Kobo and grant Kobo all necessary rights and license to make available, copy, distribute, transmit electronically and sell your Works through the eReading Service that you have submitted via Kobo Writing Life to individuals who Kobo permits to access the Kobo eReading Service (“Users”) within the territories specified by you for such Works. As used in these Terms, “eReading Service” means the online service offered by Kobo, its affiliates, or its or their third party retail sellers, or permitted licensees, that provides Users with access to discover, read, listen to, and purchase eBooks and Audiobooks through multiple interfaces including Kobo’s website, mobile applications, dedicated eReading devices, and other channels designated and authorized by Kobo. Without restricting the generality of the foregoing, Kobo may:

Copy and store your Works on one or more computers;

Convert, reformat and encode the Works into eBooks or Audiobooks and enable and optimize the display of the Works on the eReading Service, provided that Kobo agrees that we shall make no modifications to the substance of the Works and Kobo shall not be responsible for any inaccuracies or errors in conversion or reformatting;

Display, market, transmit, distribute, sell and otherwise digitally make available all or any portion of the Works and the metadata you provide through Kobo Writing Life, for customers and prospective customers to download and/or store, access, copy and paste, print, annotate and/or view/listen online and offline, including on portable devices;

Determine all marketing and promotion of your Works related to their sale on the eReading Service, including by making reasonable excerpts of the Works available for free as promotional material to encourage users to purchase the Works; and

Exercise our rights and license set out in these Terms directly and through third party booksellers, retailers, distributors, affiliates and independent contractors.

2.3 Ownership. As between you and Kobo, Kobo expressly acknowledges that you own or are licensor to all right, title and interest in and to the Works. All rights in the Works not expressly granted hereunder are reserved by you. You acknowledge that Kobo owns all right, title and interest in and to Kobo Writing Life and the eReading Service, including all intellectual property rights therein, where “intellectual property rights” means all rights arising from or in respect of the following, whether protected, created or arising under the laws of Canada, the United States or any other jurisdiction: (i) business names, trade names, registered and unregistered trade-marks and service marks; (ii) patents; (iii) copyrights, copyright registrations, writings and other copyrightable works of authorship, including computer programs, databases and documentation therefore; and (iv) proprietary and non-public business information including trade secrets, know-how, inventions, discoveries, improvements, concepts, ideas, methods, processes, designs, formulae, technical data, drawings, specifications, research and development information and other proprietary and non-public information. Kobo’s rights are protected by U.S., Canadian and international intellectual property laws.

2.4 Territorial Rights. The territory of the rights and license granted in these Terms are worldwide, except that you may expressly identify and limit Kobo’s territorial rights for each of the Works through the Kobo Writing Life interfaces provided by Kobo. Kobo shall make commercially reasonable efforts to limit access to each Work offered as an eBook or Audiobook through the eReading Service to User accounts from the specific geographic territory(ies) identified by Publisher, if any, however given the continually changing complexities of digital distribution, Kobo cannot warrant or guarantee that any Work will not be available in any particular territory.

2.5 Digital Rights Management for eBooks. At your request, eBooks will be rendered on the eReading Service in a manner that serves to prevent Users from copying and printing the content of the eBooks. If this option is enabled, the eReading Service may still allow the copying of short quotes not to exceed 600 characters to allow the User to share short passages via a social media tool (e.g. Twitter, Facebook, etc). Kobo does not guarantee the efficacy of DRM. All versions of the eReading Service use advanced security methods to protect the content in transit, and locally, by employing encryption and hash algorithms. We will respond promptly to your requests for information about any alleged copyright infringement or other unauthorised use of the eBooks.

2.6 Digital Rights Management for Audiobooks. No digital rights management will be applied to Audiobooks and as such, despite implementing its customary security measures, Kobo cannot guarantee that technically proficient third parties will be unable to distribute your Audiobook without your consent.

SECTION 3. TERM AND TERMINATION.

The term of these Terms shall continue until terminated by you or by us. We may (i) terminate or suspend your access to Kobo Writing Life at any time and for any reason or no reason, including acting unreasonably. You may suspend or terminate your participation in Kobo Writing Life and request withdrawal of your Works from sale at any time by giving Kobo at least ten (10) days’ written electronic notice to the applicable address designated by Kobo for such notices. Upon termination of these Terms, and except as otherwise provided in these Terms, Kobo shall cease selling or otherwise distributing all of your Works, provided that Kobo may maintain archival copies of the Works solely to permit any authorized continuing access by any User who has purchased a copy of such Works via the eReading Service prior to the termination of these Terms, provided further that such continuing access is not in violation of any legal mandate and that we will continue to take commercially reasonable measures to protect your Works from theft, unauthorized access, copying or retransmission, infringement, unauthorized manipulation or any other misappropriation. Kobo shall delete all such archival or other copies of each of the Works at such time as it reasonably determines it has no continuing obligation to provide continuing access to such Works.

SECTION 4. PRICING, PAYMENTS, PROMOTIONS, AND OTHER FINANCIAL MATTERS.

4.1 Price. You shall provide Kobo with the Suggested Retail Price (“SRP”) for the Work, which shall be exclusive of any goods and service, sales or similar taxes (“Taxes”) and shall be inclusive of any of any value-added (VAT) taxes within VAT inclusive territories. Kobo shall, in its sole discretion, set the actual selling price paid by the User (“ASP”) for each Work and may also display or add any Taxes to the ASP as separate items or included in the ASP.

4.2 Payment Terms: eBooks.

(a) Kobo will pay you 70% of the SRP for each eBook sold, if the eBook is not a Public Domain Work, and the SRP of the eBook is greater than or equal to: $2.99 USD in the US; £1.99 GBP in the UK; $2.99 CAD in Canada; $2.99 AUD in Australia; €1.99 EUR in the European Union; $2.99 NZD in New Zealand; $15.99 HKD in Hong Kong; ¥299JPY in Japan; 2.99 CHF in Switzerland; ₺5.99 TRY in Turkey; R$7.99 BRL in Brazil; $39.99 MXN in Mexico; $70 TWD in Taiwan; R29.99 ZAR in South Africa; ₱99.99 PHP in the Philippines; ₹149.99 INR in India; AND

(b) Additionally, the eBook must be priced at least twenty (20%) percent below the SRP of all physical editions of the book, if available.

(c) The SRP for your eBook provided to Kobo must be less than or equal to the lowest price provided by you to any third party. In the event that another retailer is selling your eBook with an SRP that is less than the SRP provided by you, Kobo may elect to adjust the SRP of the eBook to match the lower SRP and substitute this as the price used in calculating and remitting payment during the period where the price discrepancy exits. Kobo’s determinations regarding SRP matching are at its sole discretion and are not subject to review.

(d) Subject to Section 4.2(e) below, if the eBook does not satisfy the criteria in Sections 4.2(a) and 4.2(b), Kobo shall pay the Publisher 45% of the SRP for each eBook sold.

(e) Kobo will pay Publisher 20% of the SRP for each of Public Domain eBook sold. “Public Domain” shall mean:

(i) works published before 1923 in the United States;

(ii) the “author’s lifetime + 50 years” in Canada, Hong Kong, Japan, Mexico, New Zealand, Philippines, South Africa and Taiwan; the author’s lifetime +60 years in India;

(iii) the “author’s lifetime + 70 years” in Australia, the EU, the United Kingdom and the rest of the world.

Kobo is likely to remove Public Domain eBooks that are undifferentiated from content available on the Kobo store. Kobo is also likely to remove any Works that contain primarily public domain material.

4.3 OverDrive Distribution. You may opt-in your eBooks for distribution to OverDrive through the KWL dashboard. For those opted-in Works, Kobo will submit your eBook to OverDrive with the metadata you have provided through Kobo Writing Life along with the uniquely provided USD Library price. OverDrive will sell and distribute Publisher’s Works to OverDrive’s channel of institutional customers. OverDrive institutional accounts can lend your Works to their authorized end users using a One-Copy/One-User model (“OCOU”). Under the OCOU model, for each title that is purchased by a Distribution Outlet from OverDrive, the Distribution Outlet may sell or lend that same number of copies to End Users at the same time (i.e. if a library purchases two copies of a title, two patrons may check out the title at the same time). For sales to institutional distribution outlets, a lending period will be applied to Works checked out by end users.

For each eBook sold to a Distribution Outlet under the OCOU model, Kobo shall pay you 50% of the OCOU USD Library price set by you.

Kobo may determine at its sole discretion whether a Work is eligible for OverDrive distribution.

4.4 Kobo Plus.

This section outlines the specific terms applicable to your participation in the Kobo Plus subscription service (“Kobo Plus Service”). You may opt-in your Works through the KWL dashboard. For those opted-in Works, the following special terms apply:

NOTE: The following payment terms for the Kobo Plus Service apply until midnight on March 31, 2019. Effective April 1, the payment terms indicated directly below these terms will apply to all Kobo Plus sales.

(a) Payments. Kobo shall pay you an amount equal to, in respect of each subscription eBook that has been Read during the month, excluding during permitted trial periods, the product of: (A) the SRP multiplied by (B) the number of times each subscription eBook was reported as Read, multiplied by (C) the Price Factor, multiplied by 60%.

For the purposes of this section 4.4, the following definitions apply:

Price Factor” means the result, in respect of any month, of (A) the aggregate monthly Kobo Plus Service fees collected by Kobo from Users in respect of that month, minus Sales Tax, divided by (B) the Reading Activity Value.

Read” means the determination by Kobo using its customary technology that a User has read for the first time at least 20% of a Subscription eBook, excluding its front matter, or such other percentage as may be otherwise agreed in writing on a title-by-title basis.

Reading Activity Value” means the aggregate, for each Subscription eBook that has been Read during the month (other than during permitted introductory trial periods), of the number of times the Subscription eBook was Read multiplied by the SRP of the Subscription eBook.

Subscription eBook” means those eBooks designated by You for inclusion within the Kobo Plus Service.

(b) Removing eBooks. Any Work made available for Kobo Plus by you in both must be made available for a period of not less than ninety (90) days. Following such minimum time period, you may remove Subscription eBooks from the Subscription Service via the KWL dashboard. Following removal of a Subscription eBook from the Subscription Service, Kobo shall cease to make available the Subscription eBook for Users to check-out; provided, however, that Users who have already checked out the Subscription eBook will remain entitled to access it.

NOTE: The following payment terms for Kobo Plus will come into effect on April 1, 2019.

(a) Kobo Plus Payments. Kobo shall pay you each month in respect of each Subscription Content, the product of (A) the Value per minute Consumed, multiplied by (B) Kobo Plus Content Minutes Consumed, multiplied by 60%.

For the purposes of this section 4.4, the following definitions apply:

Kobo Plus Content” means those eBooks or Audiobooks designated by you for inclusion within the Kobo Plus Service.

Kobo Plus Content Minutes Consumed” means the aggregate number of minutes either read or listened to by paying Users in respect of each Kobo Plus Content title.

“Value per Minute Consumed” means (A) the revenue received by Kobo in respect of the Kobo Plus Service in the Territory for a month net of tax, refunds, credit card charges, bad debt and other associated credits, divided by (B) the total number of Minutes Consumed for that month.

(b) Removing eBooks. Any Kobo Plus made available for Kobo Plus by you in both must be made available for a period of not less than ninety (90) days. Following such minimum time period, you may remove Kobo Plus Content from the Kobo Plus Service via the KWL dashboard. Following removal of Kobo Plus Content from the Kobo Plus Service, Kobo shall cease to make available the Kobo Plus Content for Users to check-out; provided, however, that Users who have already checked out the Kobo Plus Content will remain entitled to access it.

4.5 Promotions. If presented with the opportunity by Kobo, you may choose to submit your Works for promotional consideration using the promotion tool via the KWL dashboard. The terms of each promotion vary by the type of promotion selected, and the submission guidelines and eligibility criteria for each promotion are set out in the KWL dashboard. By agreeing to submit your Work for inclusion in any given promotion, you agree to that you have read and understand the terms of that promotion as set out in the KWL dashboard.

Kobo reserves the right to change or cancel any promotion at any time. In such instances we will do our best to provide as much advance notice as possible. Kobo has the right to grant access to the promotion tool, or reject any Work from a promotion, at our sole discretion.

4.6 Currency. Kobo may allow for the submission of SRP for multiple countries and in multiple currencies and Publisher may provide an SRP for all, one, or a combination of those options. However, you must choose a single currency in which you will be paid. If you do not wish to set a specific currency for SRP, Kobo will default to a USD SRP (converted by us or set by you) as the baseline for the sale of your Works. Kobo shall have the sole right to establish reasonable currency conversion rates.

4.7 Taxes. Each Party shall pay on behalf of itself, in addition to any other amounts payable under these Terms, any sales, use, excise, value-added, services, consumption, personal property, gross receipts or any other similar taxes that may be levied or imposed by any taxing jurisdiction upon such Party by reason of the transactions contemplated under these Terms, including Taxes.

4.8 Reporting and Payment. Provided you are not in breach of its obligations under these Terms, for each of your Works sold to a User, Kobo will pay you the applicable amounts, net of refunds, bad debt and Taxes. Kobo will make payment to you and provide associated sales reporting on a monthly basis, with all payments and reports to be made within forty-five (45) days following the end of the applicable month. Kobo may accrue and withhold payments until the total amount due is $50 CAD. You are responsible for reviewing all sales reports relating to your Works. If you identify any errors or omissions in such reports, Kobo shall not be obligated to correct any such errors or omissions, or any resulting shortfalls, unless you provide written notice of such errors or omissions within six (6) months of receipt of the subject reports.

4.9 Chargebacks and Fraud. Kobo may set-off or deduct from any amounts owing to you all chargebacks levied by credit card issuers, or other payment providers in respect of any transaction, including any associated fees, for up to 120 days after the date of the transaction. Kobo shall be under no obligation to investigate or contest the chargeback with any third party. In the event that Kobo experiences undue chargeback volumes, in quantity or amount, with respect to any of your Works, Kobo reserves the right to terminate your account with immediate effect. In the event Kobo detects undue chargeback volumes, or any other pattern of fraudulent behaviour related to the Works, Kobo reserves all rights to prevent such fraud, including the suspension of all payments due to you pending an investigation by Kobo.

SECTION 5. REPRESENTATIONS, WARRANTIES AND INDEMNITIES.

5.1 You represent, warrant and covenant to Kobo that: (i) you have the rights, power and privileges to execute, deliver and perform your obligations under these Terms and the execution, delivery and performance of these Terms has been duly authorized; (ii) you have all necessary rights to make the grant and assignment of rights you have made to Kobo under these Terms and your submission of the Works hereunder and the use of the Works in the eReading Service does not violate any obligation you owe to any third party or infringe upon the intellectual property rights of any person, including the author of the Works; (iii) you will be solely responsible for obtaining and paying for any and all necessary clearances, rights and licenses for the Works to permit the exercise of the rights granted under these Terms without any further obligation by us, including any payments due to any other copyright holders, co-authors and/or co-administrators; (iv) the Works do not and will not infringe upon any common law or statutory right in any other literary, dramatic or other material and no material in the Works violates any intellectual property rights or any other proprietary rights of any person, firm or corporation and the Works contain no libellous or unlawful material or instructions that may cause harm to any person, firm or corporation; (v) any trademarks, trade names, logos, designs, and icons included with the Works do not infringe upon or violate any trademark or other intellectual property right of any other person, firm or corporation; (vi) there is no outstanding claim or litigation pending against or involving the title, ownership and/or copyright in the Works, or in any part of it, or in the rights which are covered by these Terms; and (vii) all Works you submit are legal for sale in every territory in which you designate to sell them.

5.2 You agree to defend, indemnify and hold harmless Kobo and its affiliates, and their respective officers, directors and employees, from and against any and all claims, demands, suits, actions, causes of action and/or liability, of any kind whatsoever, for damages, losses, costs and/or expenses (including legal fees and disbursements) resulting from: (i) damages to persons or property, personal injury or death caused by the negligent or willful acts or omissions arising in connection with these Terms; (ii) any and all breaches by you of any representations, warranties, covenants, terms or conditions of these Terms; and (iii) any claim you in the performance of your commitments hereunder have infringed, violated or misappropriated any third party’s right, including, without limitation, any intellectual property right. Kobo may, at its own expense, participate in the defense and settlement of any claim or action with our own counsel.

SECTION 6. LIMITATION OF LIABILITY.

KOBO WRITING LIFE AND THE EREADING SERVICE IS PROVIDED “AS IS” AND KOBO DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. KOBO MAKES NO REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, WITH RESPECT TO THE ADEQUACY OF KOBO WRITING LIFE, THE EREADING SERVICE, THE CONTENT OF THE KOBO WEBSITE FOR ANY PARTICULAR PURPOSE OR WITH RESPECT TO ITS ADEQUACY TO PRODUCE ANY PARTICULAR RESULT. YOU ACKNOWLEDGE AND AGREE THAT KOBO CANNOT ENSURE THAT YOUR WORKS WILL BE PROTECTED FROM THEFT OR MISUSE OR THAT USERS WILL COMPLY WITH ANY OF OUR CONTENT USAGE RULES. WE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY SYSTEM.

KOBO AND ITS AFFILIATES SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, DATA OR LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF SUCH KOBO IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING; AND KOBO’S AND ITS AFFILIATES’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY KOBO TO PUBLISHER HEREUNDER FOR THE TWELVE MONTH PERIOD PRECEDING ANY CLAIM.

Kobo will not be liable to you for any failure or delay in the performance of its obligations hereunder caused by any event or circumstances beyond Kobo’s control.

SECTION 7. CONFIDENTIALITY.

You will not issue any press release or any other public disclosure about these Terms and your participation in Kobo Writing Life without our consent. Each party shall keep all information disclosed or obtained as a result of the relationship of you and Kobo under these Terms and shall not disclose any information regarding such matters without the prior approval of the other party. Without limiting the generality of the foregoing, you agree not to disclose any information we disclose to you, including communications between you and us, anything about our business, customers, marketing, any sales data sent to you from us with respect to your Works or any other information we make available to you as a result of your participation in Kobo Writing Life. The obligations of confidentiality in this clause shall not extend to any matter which the other party can demonstrate: (i) is in or has become part of the public domain, other than as a result of a breach of the obligations of confidentiality under these Terms; (ii) was in its written records prior to these Terms becoming effective; (iii) was independently disclosed to it by a third party entitled to disclose the same; (iv) is required to be disclosed under any applicable law, or by order of a court or governmental body or other competent authority, or (v) is required to be disclosed to a third party as a result of a partnership with or affiliation with such third party, on the condition that such third party is bound in writing by confidentiality obligations at least equivalent to those set out in this clause.

SECTION 8. GENERAL PROVISIONS.

All notices required under these Terms or other communications required or permitted under these Terms shall be done through the email communicated to Kobo via Kobo Writing Life portal and via notification within user login to the portal. If you want to send us a notice, please use the following email: writinglife@kobo.com. All terms which by their nature are intended to survive termination of these Terms shall survive such termination. Kobo controls the eReading Service from its offices within the Province of Ontario, Canada. The eReading Service can be accessed from all provinces and territories of Canada and from other countries around the world. As each of these jurisdictions have laws that may differ from those of the Province of Ontario, by accessing the eReading Service, you agree that all matters relating to access to, or use of, the eReading Service, or any other hyperlinked website, shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. You also agree and hereby submit to the non-exclusive personal jurisdiction and venue of the courts of the Province of Ontario and acknowledge that you do so voluntarily and are responsible for complying with all local laws. Kobo has provided these Terms in languages other than English for convenience, however, the English language Terms will be used in case of any disagreement. These Terms, the Kobo Content Policy and Terms of Use are the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written. You may not unilaterally modify these Terms. These Terms may not be assigned by you in whole or in part, without Kobo’s prior written consent.

LAST UPDATED: March 1, 2019