Live Search Books Publisher Program Terms and Conditions

Last Updated: May 30, 2007

1. AGREEMENT.

This is an agreement between you (“Rights Holder” or “You”) and Microsoft Corporation (located at One Microsoft Way, Redmond, WA 98052-6399) or a Microsoft Affiliate depending on where you are located (“Microsoft”), regarding Your participation in the Live Search Books Publisher Program (the “Program”). To participate in the Program, you must agree to and comply with these terms and conditions and the policies, rules and procedures Microsoft publishes for the Program (“Program Policies”). These may change from time to time.

2. PROGRAM DESCRIPTION.

The Program is a means of making Licensed Material searchable, and part or all of it accessible (subject to the display options You select), through Microsoft’s Search Services. “Search Services”means any services owned, controlled, operated or licensed by or on behalf of Microsoft or any Microsoft Affiliate that searches electronic content, the Internet or portions of it, or other data networks, and which may be accessed through any computer or device, through any mode of transmission or syndication methods (all of which may be in forms currently known or developed in the future). A “Microsoft Affiliate” means any entity that is owned or controlled, directly or indirectly, by Microsoft Corporation.

3. MATERIAL SELECTION.

You may access the Web site located at http://publisher.live.com and certain related Web sites (collectively, the “Program Site””) to submit books, materials and associated data (“Licensed Material”) to Microsoft for inclusion in the Program. You will ensure that the Licensed Material complies with the Program Policies. Microsoft will not return print copies or other physical media or electronic files that you provide. You will promptly notify Microsoft of any (a) Licensed Material or Licensed Logo (as defined below) that You reasonably believe may breach any of the warranties set forth in Section 8; and (b) use the Program Site to promptly suspend or withdraw such Licensed Material or Licensed logo from the Program. You have the right at any time to withdraw any Licensed Material from the Search Services and Microsoft will use commercially reasonable efforts to remove Licensed Material accessible through the Search Service within 24 hours and not more than three business days after Your request using the method provided in the Program Site.

4. INDEXING AND DISPLAY.

You request and authorize Microsoft to digitally scan, copy, modify (to the extent necessary or desirable to allow access, integration or display on the Search Services, provided such changes do not materially alter the Licensed Material), index and store all content in the Licensed Material, including but not limited to all text, artwork, graphics, maps, charts, photographs, illustrations, including on book jackets and covers, and any associated metadata or related information You provide to Microsoft (the resulting electronic files being a “Licensed Work””). In creating the Licensed Work, Microsoft will not remove, obscure, or materially alter any copyright notices, other notices or disclaimers visible on the pages of the Licensed Material. Microsoft may display portions of each Licensed Work in response to end users’ use of the Search Services. Microsoft will use commercially reasonable efforts to limit display of the Licensed Work as described the Program Policies and according to the display options You choose. Microsoft will have sole discretion (a) whether to use, scan, index or display any Licensed Material; (b) to determine the placement and position of the Licensed Work in the Search Services; (c) to control, modify, and determine all terms and conditions of use of the Search Services consistent with the terms of this Agreement. You acknowledge that the Search Service may include advertising, branding, content, data, text and information from both Microsoft and third parties, which may be displayed with the Licensed Work as Microsoft sees fit in its sole discretion. Microsoft may subcontract the conversion of Licensed Material to Licensed Works and operation of all or any portion of the Search Services provided however such subcontracting shall not relieve Microsoft of any of its obligations hereunder.

5. PROTECTION.

Microsoft will use reasonable computer server-based methods to prevent users of any Licensed Work from saving, printing, copying or pasting book content in whole or in part unless you choose to allow that. Additionally, Microsoft will use commercially reasonable efforts to prevent unauthorized access to or theft of Licensed Content in Microsoft’s possession or under its control. No obligation to limit display, access, printing or copying applies to Licensed Material in the public domain. You understand that there is no guarantee that the means used to limit display or access will be effective for all users. Microsoft’s terms of use for end users of the Search Services will prohibit unlawful or infringing use of Licensed Work.

6. LOGO AND PROMOTION.

If You submit your trademark or logo (the “Licensed Logo”), Microsoft will have the right to display it on any Web pages on the Search Service that display Your Licensed Material. If You provide Microsoft a URL to your Website, Microsoft may display the Licensed Logo as a hyperlink to that site. Microsoft will determine the size and location of the Licensed Logo and hyperlink at its discretion, and will provide You with similar size and position as other participating publishers. Microsoft may at its discretion use the Licensed Logo in advertising, directories, marketing materials, publicity, press releases, newsletters and mailings related to the Search Services. You agree not to make any public announcement about this agreement without Microsoft’s prior written consent. You may withdraw the Licensed Logo and/or URL at any time, and Microsoft will discontinue use within a commercially reasonable period thereafter. All goodwill associated with use of the Licensed Logo shall inure solely to Your benefit, and except as described above Microsoft shall make no other use of the Licensed Logo without Your prior consent.

7. PROPRIETARY RIGHTS.

Nothing in this Agreement will be construed to grant (a) Microsoft any ownership in the Licensed Materials or Licensed Logo, or (b) You any rights in the Search Service or any other materials of Microsoft. This Agreement does not entitle Microsoft to make any use or derivative works of the Licensed Material except as described herein.

8. YOUR WARRANTIES TO MICROSOFT.

You represent, warrant and covenant to Microsoft that: (a) You are fully authorized to enter into this agreement and to grant Microsoft the rights granted by You under this agreement; (b) You will not submit any Licensed Material where you do not have all the necessary rights for the Program; (c) the Licensed Material, Licensed Logo, and any Web sites that You direct Microsoft to link to, (i) do not violate any law or regulation, and (ii) do not infringe, misappropriate or otherwise violate any proprietary or intellectual property right of any third party, or otherwise breach the rights (including but not limited to rights of publicity or privacy) of any third party; (d) you will use commercially reasonable efforts to ensure that the Licensed Material will comply with the Program Policies and that the information you provide Microsoft under the Program will be accurate, complete and current; and (f) You will not, and will not cause or encourage any third party to, generate automated or fraudulent clicks or otherwise interfere with the operation of, or third parties’ access to, the Search Services.

9. INDEMNIFICATION.

You will indemnify and hold Microsoft and its Affiliates, agents and authorized distributors and licensees of the Search Services harmless from and against all damages, costs, liabilities, losses and expenses, including, without limitation, reasonable attorneys' fees and other costs of defense, arising from any proceeding, suit or claim based on or arising out of any allegation that the Licensed Material, Licensed Logo or Your Web sites (i) infringe, misappropriate or violate any copyright, trademark or other proprietary right of any third party, or constitute defamation, invasion of privacy or the violation of any right of publicity or other similar right of any third party, or (ii) violate any applicable law, rule or regulation.

10. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PROGRAM, THE PROGRAM SITE, THE SEARCH SERVICES AND ANY ASSOCIATED PRODUCTS OR SERVICES AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND WITH ALL DEFECTS, AND MICROSOFT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS AS TO QUALITY. EXCEPT FOR CLAIMS INDEMNIFIED UNDER SECTION 9 AND CLAIMS ARISING FROM BREACH OF THE WARRANTIES SET FORTH IN SECTION 8 OR BREACH OF CONFIDENTIALITY UNDER SECTION 12, NEITHER PARTY NOR ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION). MICROSOFT’S AND ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE GREATER OF (A) THE TOTAL AMOUNT IF ANY, PAID BY MICROSOFT TO YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR (B) $100. MICROSOFT WILL HAVE NO LIABILITY HEREUNDER BY REASON OF ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS DUE TO FORCE MAJEURE.

11. TERMINATION.

If You are dissatisfied with any aspect of the Program, Your sole and exclusive remedy is to cease participating in the Program and terminate this agreement upon notice to Microsoft using the methods set forth in the Program Site. Microsoft will use commercially reasonable efforts to discontinue display of the Licensed Material and Licensed Logo in the Search Services within twenty-four (24) hours and not more than three (3) business days after the effective date of termination. Microsoft and its Affiliates will not be required to remove the Licensed Material or Licensed Logo from archived versions of the Search Services or from advertising or marketing materials produced, published or distributed before the effective date of termination; provided however Microsoft shall have no further right to use the Digitized Material or Publisher Material following termination. This Section and Sections 5, 7, 8, 9, 10, 12 and 14 shall survive termination, along with any other provisions that might reasonably be deemed to survive such termination.

12. CONFIDENTIAL INFORMATION.

If You have entered into a Microsoft Non-Disclosure Agreement (“NDA”), it is acknowledged and agreed that the NDA applies to this agreement as if fully set forth herein. If You have not entered into an NDA, information that is disclosed by one party to the other party, and that is marked “confidential”, or which under the circumstances ought reasonably to be treated as confidential information, will be treated as confidential by the receiving party. The receiving party will not disclose to a third party such information, or use such information other than for the purposes for which it was provided, without the written consent of the other party; this limitation will apply for a period of five years after disclosure of such confidential information. The foregoing limitations do not apply to the extent such information: (a) is or subsequently becomes publicly available other than through a breach of these limitations; (b) is already known to the receiving party at the time of disclosure; (c) is developed by the receiving party independent of such information; or (d) is rightfully received from a third party without restrictions on disclosure or use.

13. MODIFICATIONS.

Microsoft may modify this agreement at any time upon notice to You in accordance with the provisions of Section 14 below. Your continued participation in the Program after any such notice will signify your acceptance of such change. In some cases, Microsoft may ask you to amend this Agreement (for example, to add a new program). No other conditions, provisions, or terms of any sort appearing in any writings, payments, or other communications to Microsoft will alter or supplement this agreement.

14. NOTICES.

Microsoft may give notices to You, at Microsoft’s option, by posting on the Program Site, by electronic mail to the e-mail address You provide to Microsoft or by mail to the postal address You provide to Microsoft. It is Your responsibility to ensure that Your e-mail address and any other contact information You provide to Microsoft is updated and correct. All notices to Microsoft shall be sent using contact methods provided on the Program Site.

15. MISCELLANEOUS.

This agreement shall be construed under and controlled by the laws of the State of Washington, except for any conflict of law principles to the contrary. You hereby irrevocably consent to venue and personal jurisdiction, in the state and federal courts sitting in King County, Washington, USA for any dispute arising out of or related to this Agreement, and you agree not to commence or prosecute any such dispute except in such courts. The parties are independent contractors, and nothing in this agreement will be construed to create a partnership, joint venture, franchise or agency relationship between You and Microsoft. You may not assign, sub-license, transfer, encumber or otherwise dispose of this agreement without Microsoft's prior written approval. Any attempted assignment, sub-license, transfer, encumbrance or other disposal without such consent shall be void. Subject to the foregoing, this agreement shall be binding upon and inure to the benefit of the parties' successors and lawful assigns. You will protect any passwords associated with Your account(s), and take full responsibility for any use of the account(s) under Your password. The failure of either party at any time to enforce any right or remedy available to it will not be construed to be a waiver of such right or remedy. If any provision contained herein is held to be unenforceable in any respect, such unenforceability will not affect any other provision of this Agreement.

16. Notices and Procedure for Making Claims of Copyright Infringement.

Under Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to service provider's designated agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement.

17. PRIVACY.

FOR INFORMATION SEE THE MICROSOFT PRIVACY STATEMENT.