ABA Non-Member IndieBound Materials License Agreement

This Agreement contains the complete terms and conditions that apply to your use of materials available for download, including without limitation copyrighted materials, trademarks, and service marks, relating to ABA”s IndieBound program (collectively, the “Materials”).  As used in this Agreement, "we," "us," “our,” “BookWeb.org,” “IndieBound, ” "IndieBound.org" or “ABA” refer to American Booksellers Association, and "you" and "your" refer to the party accepting the terms of this Agreement, as described below.


Term and Termination 

This Agreement will become effective upon your indicating acceptance of these terms and conditions by clicking on the ACCEPT button below.  Either you or we may terminate this Agreement at any time, with or without cause, by giving the other at least five (5) days written notice of termination.  You agree to cease all use of the Materials, as well as any works you may have created based on the Materials, immediately upon termination.  You agree that your continued use of the Materials, or works based thereon, after termination will result in direct harm to us and entitle us to immediate injunctive relief and damages.  You further agree that upon termination, you will transfer any domain names incorporating any of our marks to us, you will cease to make any representations, express or implied, that you are affiliated with the IndieBound.org program, and you will not in the future use or apply to register any trademarks, service marks, trade names, slogans, or domain names consisting of or incorporating any marks or terms used by us as part of the IndieBound program. 


Promotion

ABA will make the Materials available to you for download, and you may use the Materials to create your own promotional items subject to our written approval.  The downloaded Materials, and any promotional materials you create based on them, may only be used to support the goals of the IndieBound program and independent retail operations.  You may modify the Materials, but all modifications must be approved in writing by us.  For approval, electronic or hard copy specimens of the proposed materials must be sent by electronic mail to Meg Smith meg@bookweb.org or indieinfo@bookweb.org or mailed to ABA, Chief Marketing Officer, 200 White Plains Rd, Tarrytown, NY 10591.  Any failure by us to respond to a request for approval within seven (7) business days of receipt shall be deemed approval. We may, however, revoke our approval at any time, and you agree to cease all uses if requested.  You agree that you will not use the Materials in any manner that would adversely affect our goodwill or the goodwill of the IndieBound program.  We reserve the right to investigate your use of the Materials, and all promotional materials based on them, at any time, and you agree to make any changes requested by us within the timeframe required by us. 


Representations and Warranties; Limitation of Liability 

Each of us hereby represents and warrants that: 
- it has full power and authority to enter into this Agreement and to perform its obligations hereunder; and
- it has obtained any permits, licenses, or other governmental authorizations and approvals required for its performance under this Agreement.

ABA WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT.


Intellectual Property Rights
 
ABA hereby grants to you for the duration of this Agreement a non-exclusive, non-transferable, royalty-free license to use the Materials solely to promote your store, independent retail operations and organizations and/or the IndieBound program.  Except as set forth above, you and we each reserve all right, title and interest in our respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks and other intellectual property rights). Use of the other's marks except as set forth herein is strictly prohibited.  All promotional materials created by you from the Materials shall be considered derivative works, and all copyrights therein shall be owned by us.  You agree to execute promptly any and all documents that may be necessary to perfect our ownership in the promotional materials created by you, and you agree not to assert any claims or right against us regarding our use and right to use such promotional materials. 


General Provisions
 
You and we are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us.  Notwithstanding the foregoing, all copyrights in any promotional materials created from the Materials shall be owned by us, and if the law so requires, assigned by you to us.  

Neither you nor we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.  

This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of New York. Any action or claim arising hereunder will be brought in the federal or state courts, located in New York and you consent to the jurisdiction of the federal and state courts of New York for purposes of this provision.  Any notices under this Agreement shall be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date, but (except in the case of electronic mail sent for the approval of new promotional materials) only if the receiving party has confirmed its receipt by return electronic mail. Notices sent via traditional means shall be sent via certified mail, return receipt requested. Notices to IndieBound.org must be sent to: American Booksellers Association, Attention: Chief Marketing Officer, 200 White Plains Road, Suite 600, Tarrytown, New York 10591.  

You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.  

This Agreement represents the entire Agreement between you and us with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter.  We reserve the right to amend or modify the agreement at any time, at which point you would be required to accept the revised Agreement before continuing to use the Materials.  

If any provision of this Agreement will be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.
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