Publishing and Distribution Agreement
This Publishing and Distribution Agreement ("Agreement") governs your rights and obligations in respect of all materials published as a zApp or a zApp Book (both referred to as "zApps" in this Agreement) on the following platforms (collectively "Libraries"):
- (a) My Library;
- (b) School Library (Teachers);
- (c) sQuizya Library (Teachers); and
- (d) sQuizya Library (All Users).
This Agreement and all guidelines, specifications and policies of the Provider referred to this Agreement are supplementary to the User Agreement and are incorporated into the User Agreement by this reference. Unless otherwise defined herein, all capitalised terms are defined in the User Agreement.
1. ACCEPTANCE OF AGREEMENT
- 1.1 This Agreement is made by and between the following parties:
- (a) sQuizya Pty Ltd (ABN 18 751 964 411 / ACN 167 051 354) and its successors and assigns ("Provider");
- (b) any individual or entity that is invoiced or charged by the Provider for the use or access of the Portal, into which payment of Author Royalties is made in accordance with clause 7.4(e)(ii) ("zApps Account Holder"); and
- (c) any individual or entity who is the creator and/or author of zApps ("Author", "you" or "your").
- 1.2 By checking on the "I Agree to the terms and conditions of the Publishing and Distribution Agreement" box prior to publication, you acknowledge that you have scrolled through, and have read and understood the provisions of this Agreement, and you agree, on your own behalf, or on behalf of those you represent, to be bound by the provisions herein as of the date you check the aforesaid box or the date you publish your first zApp, whichever date is the earlier (being the "Effective Date").
- 1.3 If you do not agree to the provisions of this Agreement, you must not check on the "I Agree to the terms and conditions of the Publishing and Distribution Agreement" box and you will not be permitted to publish any zApps on the Libraries.
- 2.1 You represent and warrant that:
- (a) you are at least 18 years old;
- (b) you have the capacity to form a binding contract;
- (c) you are not a person barred from accessing or using the Site under the User Agreement; and
- (d) your access or use of the Site or the Portal and/or all Features therein does not violate any applicable law or regulation.
3. ZAPPS AND LIBRARIES
- 3.1 The zApp Creator is one of the unique Features offered by the Provider that is made available through or in connection with the Portal, the access and use of which is governed by the User Agreement. The zApp Creator enables Authors to create materials, resources and/or books as zApps.
- 3.2 These zApps may be published, distributed and offered for use on one or more of the Libraries. Each of the Libraries may be accessed by one or more categories of Users as follows:
- (a) My Library - accessed by the Author and any other Users permitted by the Author at the Author's discretion only;
- (b) School Library (Teachers)and sQuizya Library - accessed by the Author and all Users who are registered or designated as "Teachers" with respect to their own account under the User Agreement; and
- (c) sQuizya Library (All Users) - accessed by the Author and all Users.
- 3.3 Unless explicitly stated otherwise, the publication and distribution of all zApps to Users on or in connection with any new or updated Libraries made available from time to time by the Provider shall also be subject to the provisions of this Agreement.
4. REQUIREMENTS FOR PUBLICATION ON THE LIBRARIES
- 4.1 All zApps created by you for publication on the Libraries must comply with the requirements set out in this clause.
- 4.2 Information requirements: You must include or provide the following information with all zApps published on the Libraries:
- (a) copyright notice that conforms with the notice requirements of the Provider ("Copyright Notice"):
- for non-restricted publications: "All rights reserved. You are free to reproduce, modify, extract and share work from this zApp into another zApp within the sQuizya platform. No part of this zApp may be reproduced, stored or transmitted into another application outside of the sQuizya platform, in any form or by any means: electronic, mechanical, photocopying, recording or otherwise"; and
- for restricted publications: "All rights reserved. You are free to reproduce, modify, extract and share work from this zApp into another zApp within the sQuizya platform, for use within your institution only. The resulting zApp cannot be shared outside of the institution in which it was altered. No part of this zApp may be reproduced, stored or transmitted into another application outside of the sQuizya platform, in any form or by any means: electronic, mechanical, photocopying, recording or otherwise".
- (b) if you intend to share your zApps under the sQuizya Author Royalty Program, the PayPal account details of the zApps Account Holder into which all payments of royalties will be deposited in accordance with clause 7.5(b);
- (c) any other information as may be requested by the Provider.
- (a) copyright notice that conforms with the notice requirements of the Provider ("Copyright Notice"):
- 4.3 Content requirements:You must not publish any zApps content including text, images, illustrations and any other audio-visual material (collectively "zApps Content") that:
- (a) is primarily intended for the purpose of advertising, promoting or soliciting of any products or services of any type or nature;
- (b) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- (c) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
- (d) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- (e) comprises unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
- (f) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- (g) purports to impersonate any other person or entity, including, but not limited to, any other User, the Provider's official, employee, consultant, guide, host or any other representative, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- (h) fails to comply with any codes of practice issued by any relevant governing board or authority;
- (i) is inaccurate or incomplete, or inaccurately or incompletely described, or contains metadata or any other computer code that is inaccurate or incomplete;
- (j) is not delivered to the User in its entirety or is delivered with the condition that additional purchases should be required to peruse any part or all of the zApps Content; and
- 4.4 Technical requirements:You must comply with all technical guidelines, specifications and policies of the Provider made known to you from time to time (collectively "Instructions").
- 4.5 Approval requirements: All zApps intended for publication on the sQuizya (Teachers) or sQuizya (All Users) Libraries must be submitted to the Provider for approval prior to such publication. You will be notified by email on any decisions made by the Provider and the Provider shall have the absolute discretion to approve or reject or impose conditions for approval as it thinks fit, with or without any reasons being made known to you.
- 4.6 You bear the sole responsibility for any errors or omissions caused by non-compliant zApps including but not limited to errors in, or poor quality of, the display of zApps on the Libraries and shall be liable to the Provider for any loss or damage caused to the Site, the Portalor its Features thereof or the Site's computer servers as a result of such non-compliance.
- 4.7 You further agree that you shall be liable to the Provider, and shall indemnify the Provider, against any and all claims, demands, losses, damages and costs that the Provider incurs or may incur as a result of a failure to comply with any requirements herein or a breach of any of your obligations and warranties in this Agreement.
- 4.8 You must immediately report any zApps that are in breach or in violation of any of the requirements in this clause and request for immediate removal of such zApps from all Libraries from the Provider.You must rectify such breach or violation prior to the re-publication of the zApps on the Libraries.
- (a) the Provider is entitled to demand from you any additional information required on the zApps and may request that you include such additional information in any zApps published or intended for publication on any of the Libraries;
- (b) you represent and warrant that any information or documentation you supply to the Provider or any information you publish as part of the information requirements set out in clause 4.2 is complete, current and accurate and you authorise the Provider, its authorised representatives, agents or third party service providers, to make any inquiries deemed necessary by the Provider to verify the accuracy of information supplied and/or your rights and entitlements to publish the zApps;
- (c) the Provider reserves the sole and exclusive right to remove all zApps that fail to comply with the requirements or demands or requests by the Provider herein.
- 4.10 Any review or approval of zApps by the Provider (where relevant) shall not be deemed to constitute acceptance that such zApps have been submitted or published by you in accordance with the requirements herein, nor shall it constitute a waiver of the rights of the Provider under this Agreement, or in law or equity or otherwise.
5. PUBLICATION ON LIBRARIES - PROPRIETARY RIGHTS
- 5.1 In consideration of the rights and entitlements conferred on the Author under this Agreement, you hereby acknowledge and agree that the copyright and all other rights of any nature now subsisting or conferred in any zApps published on any of the Libraries, and not otherwise owned by any other third party, shall vest in the Provider as and from the date of first publication of the zApps.
- 5.2 Accordingly, you assign to the Provider or any entity nominated by the Provider:
- (a) the entire copyright throughout the world and all other rights of a like nature now subsisting or conferred in respect of any proprietary zApps Content held by you by the law in force in any part of the world including all renewals and extensions;
- (b) by way of assignment of future copyright, the copyright and all other rights of a like nature from time to time belonging to you which may be conferred or may subsist in any alterations or additions to the Works and any and all renewals and extensions thereof; and
- (c) any and all common law rights and statutory or common law remedies in relation to any proprietary zApps Content held by you and available to you at the date of first publication of the zApps on any of the Libraries.
- 5.3 You consent in favour of the Provider or any entity nominated by the Provider to any activity the performance of which would otherwise infringe your moral rights.
- 5.4 You further consent to the use of, and hereby authorise the Provider to use, your name, image, voice, likeness and any or all your attributes and/or your business name, logo, trademark or any other identifying marks for creating informational or promotional material or pages of any zApps published on any of the Libraries and for any other purposes as the Provider deems necessary or prudent in respect of the Site or the business of the Provider.
- 5.5 The Provider grants you an exclusive, worldwide and royalty-free licence to reproduce, distribute,adapt, use and publicly display any zApps Content in its entirety and as a whole in any other digital or electronic format or in hard copies for the purposes of sale and/or any other commercial ventures you participate in or intend to participate in.
6. PUBLICATION ON LIBRARIES - WITHDRAWAL OF ZAPPS
- 6.1 All zApps published on the Libraries may be viewed by other Users and, subject to the features and functionality of each of the Libraries and the entitlements of each User category set by the Provider, may be accessed, used or downloaded by other Users.
- 6.3 The Provider shall have the absolute discretion to remove or withdraw from any of the Libraries any zApps if the Provider considers it necessary or prudent to do so to protect the rights of the Provider, other Users and/or any other third parties.
- 6.4 You acknowledge and agree that the withdrawal will apply prospectively only and will not apply to any zApps that have been accessed, used or downloaded by any User prior to such withdrawal.
7. USE OF ZAPPS AND AUTHOR ROYALTIES
- 7.1 All zApps published by you and distributed through or in connection with any of the Libraries may be offered for use under the sQuizya Author Royalty Program.
- 7.2 You acknowledge and agree that:
- (a) the Provider may convert the Subscription Sale Currency into any other currencies at the exchange rate of conversion applicable at the time of sale or at any other reasonable exchange rate determined by the Provider from time to time;
- (b) the subscriptions may be sold at such other currencies as the Provider in our absolute discretion may determine;
- (c) the Provider is solely responsible for processing all sales, payment collection, requests for refunds and/or related customer services of the zApps made through or in connection with the Libraries; and
- (d) the Provider shall have sole and exclusive ownership and control of all data obtained from purchasers or prospective purchasers of the subscriptions and has no obligation to share or reveal any such data to you or to the zApps Account Holder.
- 7.3 Authors who join the sQuizya Author Royalty Program will receive a royalty payment based on a share of actual earnings received by the Provider in respect of the sale of subscriptions to the Libraries for each year, net of refunds, bad debt, any applicable GST, VAT, sales or other taxes charged to a purchaser or applied with respect to sales to a purchaser ("Royalties").
- 7.4 Royalties shall be paid in accordance with the following terms and conditions:
- (a) Royalties are determined by:
- calculating the gross value of the sQuizya Author Royalty Program for the given twelve month period. This is a percentage of net sales as calculated in 7.3. Currently the percentage used is 50% but this is subject to change at the discretion of the Provider;
- calculating the proportion of legitimate use of the Author's zApps in comparison with the use of all zApps in the libraries in that twelve month period. Legitimate use is as defined by the Provider and is subject to change at the Providers discretion;
- considering any sharing agreement that exists between the Author and sQuizya;
- multiplying the gross value of the sQuizya Royalty Program as found in 7.4(a)1 by the proportion, expressed as a percentage of all use as found in 7.4(a)2 and by the proportion, expressed as a percentage of the Authors share, determined in 7.4(a)3.
- (b) payment of Royalties shall be made by the Provider within six months of the expiry of the twelve month period to June 30, for the duration of the term of this Agreement provided always that if the amount of Royalties payable is less than $100 USD in the relevant currency then the Provider has the right at our absolute discretion to combine payment of such Royalties with the Royalties payable for the next year;
- (c) the Provider shall make all payments in the Sale Currency by way of PayPal directly into the PayPal account nominated by the zApps Account Holder;
- (d) all payments must be accompanied by an email to you sent to your nominated email address as notified by you to the Provider setting out the following details ("Email Statement"):
- the sales activity of the relevant twelve month period to which the payment applies;
- the amount of Royalties paid; and
- the evidence of payment in the form of a statement of payment details automatically generated by PayPal ("Evidence of Payment");
- (e) the Author acknowledges and agrees that payment of Royalties shall be deemed to have been made on the production of the Evidence of Payment and that:
- the Provider shall not be liable, and disclaims any and all liability, for or arising in connection with your failure to receive payment for any reason whatsoever, including any failures caused by the negligence of PayPal and/or its representatives and agents and any other failures caused by factors outside of the Provider's control; and
- the Provider shall also not be liable, and disclaims any and all liability, for or arising in connection with your failure to receive payment as a result of payments being made to a PayPal account that is owned or controlled by the zApps Account Holder in the circumstances where you are not the zApps Account Holder. You are responsible for maintaining your relationship with the zApps Account Holder and any rights and entitlements you may have against the zApps Account Holder.
- (a) Royalties are determined by:
- 7.5 All issues, concerns and/or disputes with respect the payment of Royalties in accordance with this clause shall be communicated in writing to the Provider at our nominated email address at firstname.lastname@example.org within 6 months of the date of the Email Statement. The Provider shall take all reasonable steps to resolve the issue, concern or dispute with you on a prompt basis.
- 7.6 You shall not be entitled to institute legal proceedings against the Provider with respect to any payment of Royalties or the content of the Email Statement unless the Provider is unable to resolve the issue, concern or dispute with you within 3 months of the date of first communication of the aforesaid to the Provider pursuant to clause 7.6. All legal proceedings instituted against the Provider shall be limited to a determination of the amount of Royalties payable to you and your sole remedy shall be the recovery of such amount free of interest.
- 7.7 The Provider has a right of set-off and shall be entitled to withhold or permanently forfeit any Royalties from you for the purposes of offsetting such Royalties against future payments and/or loss or damage suffered by the Provider in the following circumstances:
- (a) where refunds or returns on sales included in the calculation of Royalties already paid to you occur;
- (b) where a third party asserts that the sale of the zApps contravened the rights of the third party;
- (d) where you are in violation of any applicable laws; and
- (e) where this Agreement has expired or has been terminated, for any reason whatsoever.
8. SUSPENSION AND TERMINATION
- 8.1 The term of this Agreement shall commence on Effective Date and shall continue for the duration of the term of the User Agreement.
- 8.2 Clauses 5 and 7 and all disclaimers and limitations of liability as they apply to the rights granted by the Provider and the restrictions placed on you here in shall survive the termination or expiration of this Agreement for any reason.
9. EXCLUSIONS OF LIABILITY AND INDEMNITY
- 9.1 To the fullest extent of the law, the Provider expressly disclaims all conditions, warranties, representations, liabilities and obligations of any kind, whether express or implied, including, but not limited to any conditions or warranties as to:
- (a) merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of the Libraries;
- (b) the results procured from the access and use of the zApps Creator, the publication of zApps and the distribution of the zApps through or in connection with the Libraries;
- (c) the marketing and promotion efforts of the Provider, if any, relating to the Libraries, the Site and/or any zApps offered on such Libraries; and
- (d) the fact that such results are accurate, complete or otherwise reliable.
- 9.2 You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:
- (a) damage to property;
- (b) loss of profits or revenue;
- (c) loss of data;
- (d) goodwill;
- (e) other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from or relating to the publication and distribution of the zApps through or in connection with the Libraries.
- 9.3 The Provider,its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall also not be liable to you for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control for so long as such conditions persist. Force majeure events include, but are not limited to, natural disasters (e.g., lightning, earthquakes, hurricanes, floods), wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires, embargoes, strikes, and labour disputes, governmental decrees and any other cause beyond the reasonable control of the Provider.
- 9.4 You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of any provisions of this Agreement.
10. REPRESENTATIONS AND WARRANTIES
- 10.1 You represent and warrant that:
- (a) you have the legal right and authority to enter into this Agreement;
- (b) you have the legal right and authority to perform your obligations under this Agreement; and
- (c) by entering into this Agreement, you are not violating or creating a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on you.
- 11.1 You hereby agree and warrant that, save for any taxes taken into account in the calculation of Royalties as described in clause 7.4, you shall be solely responsible for the payment of all taxes and other costs, expenses, liabilities and claims arising from, or in connection with payments under the sQuizya Author Royalty Program.
- 12.1 A party notifying or giving notice under this Agreement must give notice:
- (a) in writing;
- (b) with respect to the Provider, to the contact details specified on squizya.com as may be updated from time to time;
- (c) with respect to you, to the postal address, fax number or email address specified in Your Account, as may be updated by you from time to time.
- 12.2 A notice given in accordance with this clause is received:
- (a) if left at the recipient's address, on the date of delivery;
- (b) if sent by prepaid post, four (4) days after the date of posting;
- (c) if sent by fax, when the sender's facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and
- (d) if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient's, mail server within two (2) days after the date of the email.
13. NO ASSIGNMENT
- 13.1 You must not assign any of your rights or obligations under this Agreement to any third parties.
- 13.2 The Provider may, without any notice to you, assign any of its rights or obligations herein to any third party.
14. GOVERNING LAW
- 14.1 This Agreement and any obligations arising out of or in relation to Agreement shall be governed by and construed in accordance with the laws of the state of Victoria and the Commonwealth of Australia.
- 15.1 You understand, agree and acknowledge that the courts of the state of Victoria are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counter claims and disputes relating to any non-contractual obligations) which may arise out of or in connection with this Agreement and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.
16. ENTIRE AGREEMENT
- 16.2 This Agreement may be modified from time to time by the Provider by way of written notification to you in accordance with clause 12.
17. WAIVER AND SEVERABILITY OF TERMS
- 17.1 The failure of the Provider to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
- 17.2 If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.