Please read these Terms of Service (the “Terms”) carefully. IndieMosh is an imprint of Tellwell Talent Inc., a British Columbia company, having its offices at 2031 Store Street, Victoria, BC Canada V8T 5L9 (“Tellwell”), which offers publishing consulting, project management, editorial, design, illustration, marketing and distribution services (the “Services”). These Terms govern your purchase and use of the Services. Wherever used in these Terms, “you”, “your”, “the author” or similar terms means the person or legal entity purchasing services from Tellwell. If you are accessing or using services on behalf of a company (such as your employer) or other legal person, you represent and warrant that you have the authority to bind that company or other legal person to these Terms.
BY PURCHASING OR USING THE SERVICES, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH TELLWELL (THE “AGREEMENT”). THE AGREEMENT IS SUBJECT TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT PURCHASE OR USE THE SERVICES. If you have any questions regarding these Terms, please contact us at legal@tellwellpublishing.com.
1. Purchase of Services
Subject to these Terms, Tellwell agrees to provide only the Services that you purchase as set out on the invoice issued to you by Tellwell. The scope of the Services will vary depending upon the publishing package and services purchased. Detailed descriptions of the services offered by Tellwell may be found here, and are hereby incorporated by reference. Please read the service descriptions carefully prior to selecting and purchasing any services. The Services are non-exclusive and, unless expressly agreed by Tellwell, do not include any services or Tellwell obligations that are not set out in the relevant services description. Tellwell reserves the right to charge for any additional services and expenses provided or incurred that are outside the scope of the Services purchased. Section 5.2, below, sets out examples of situations where additional charges may apply.
2. Term
The Agreement between you and Tellwell will commence upon the acceptance by Tellwell of your order for the Services, and is subject to these Terms. Unless earlier terminated in accordance with Section 14, below, the Agreement will terminate upon the completion or expiry of the Services.
3. Author Intellectual Property Rights
For the purposes of these Terms, your manuscript, all contents and edits (if editing services are purchased), any images, illustrations or designs provided by you, and all intellectual property rights in any of the foregoing are collectively referred to as the “Author’s Materials”. Subject to the limited license set out in Section 4, the author retains ownership of the Author’s Materials and the resulting book (the “Book”), including copyright, for which the Services have been fully paid. Specifically the following applies to the treatment of Author’s Materials:
3.1 Manuscript
You retain all intellectual property rights in and to your manuscript and its contents. If you purchase editing services, you also own copyright in the edited version of the manuscript.
3.2 Illustrations
If you are the copyright holder of illustrations that you provide as input to Tellwell to provide the Services, you retain copyright to these materials. You will own the copyright to the final version of any illustrations delivered as part of the Services and paid for by you. However, you agree that illustrators shall be entitled to use the illustrations in their portfolios solely for the purpose of showcasing projects they have worked on to advance their careers and Tellwell may use samples for the purpose of promoting our company.
3.3 Design and Layout
If you are the copyright holder of images or designs that you provide as input to Tellwell to provide the Services, you retain copyright to these materials. You will own the copyright to the final version of any book cover design and interior layout delivered as part of the Services and paid for by you. However, you agree that designers shall be entitled to use the designs in their portfolios solely for the purpose of showcasing projects they have worked on to advance their careers and Tellwell may use the designs and layouts for the purpose of promoting our company.
4. Tellwell’s Rights
4.1 Tellwell License to use Author’s Materials Solely in Connection with the Services
You grant to Tellwell a non-exclusive, transferable, world-wide right and license, with the right to sublicense, to access, use, reproduce, modify, publish, distribute, disseminate, perform, transmit, display, store, index and archive the Author’s Materials and the Book, solely as necessary in connection with the performance of the Services purchased. Without limitation, if reasonably required in connection with the performance of the Services, Tellwell may:
(a) market and sell the Book in print, eBook, and audiobook form, directly and through third party vendors, distributors, retailers and other electronic channels (collectively, “Third Party Channels”) and through Tellwell’s website;
(b) make excerpts from the Book, which may include any number of pages from the interior of the book, viewable on Tellwell’s websites and through Third Party Channels that have entered into agreements with Tellwell, in order to facilitate the marketing and sale of the Book;
(c) post pertinent information about you and the Book on Tellwell’s websites and Third Party Channels. Such information may include the Book’s cover, your name and picture, a description of the Book, testimonials or reviews about the book and other related information; and
(d) require that the Book contain, or not contain, certain Tellwell logos, marks or attributions for the Services.
4.2 Tellwell Owns its Production Files Unless Expressly Included in the Services
“Production Files” include but are not limited to Indesign, Illustrator, Photoshop, Canva, print-ready pdf, .epub, .mobi, mp3, or other files created by Tellwell during the process of designing and publishing a book based on your manuscript. Unless a specific Production File, including its file format (for example .pdf, .mobi, epub., .indd), is expressly referenced in the description of Services as exempt from this clause, Tellwell will retain ownership of the Production File, but agrees to use the Production File solely for the purpose of providing the Services. Unless otherwise specified in the relevant Services description, you do not have the right to access or use any Production Files.
4.3 Tellwell Services
Tellwell is the owner of the Tellwell services, including all methodology, resources and intellectual property rights (other than Author’s Materials) related to or used in connection with the performance of the Services. Tellwell owns the trademarks, design marks, trade dress, domain names, service names, logos and associated designs used in connection with its company, operations and services (“Tellwell Trademarks”), and any unauthorized use of the Tellwell Trademarks is strictly prohibited.
4.4 Feedback
As between you and Tellwell, Tellwell shall exclusively own any suggestions, comments, reviews, survey data and other feedback (”Feedback”) submitted by you, whether anonymously or not, or any third party regarding the Services or any other Tellwell services. You agree that Tellwell shall have the unrestricted right to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its services, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes at its discretion in perpetuity, without compensation, attribution or other obligation to you or to any other party.
4.5 No Obligation to Retain or Return Copies of Author’s Materials
Tellwell may, but will not be obliged to store or return any files or other materials that you provide to Tellwell in connection with the Services. You should retain copies of all materials provided to Tellwell. In no event will Tellwell be responsible for any lost or damaged materials.
4.6
You agree to allow Tellwell to use information about you and the Book for the purposes of marketing Tellwell’s services and for building Tellwell’s brand both during the term of this agreement and afterwards. Such information may include the Book’s cover, select illustrations contained in the Book, select double-page spreads from the Book, your name and picture, a description of the Book, testimonials and reviews about the Book, your marketing achievements, and other related information.
5. Scope of Services
5.1 Service Descriptions
Detailed descriptions of the services offered by Tellwell are set out on Tellwell websites, and abbreviated versions of services selected will be included on the client invoice issued by Tellwell at the time of purchase. You should read the service descriptions carefully prior to selecting and purchasing any services. Tellwell may, but will not be obligated to, provide any services beyond those described in the service descriptions for the Services that you purchase.
5.2 Charges for Additional Services
Tellwell’s goal is to avoid any unanticipated or “hidden” costs. Current pricing for Tellwell’s services is set out on Tellwell websites. However, there may be circumstances when additional fees will apply, such as when you request services that are beyond the scope of what is included in the Services that you have purchased. The following is a non-exhaustive list of examples where additional fees may apply. This should be reviewed in conjunction with the specific Services listed on your invoice and the description of the services set out on Tellwell websites:
(a) Editing and Proofreading. Editing services are not included in the Services unless they have been purchased and are listed on the invoice issued by Tellwell. The cost of each editing service is determined by the total number of words in the manuscript. If the manuscript submitted contains more words than have been purchased, additional fees apply. The editor’s job is to greatly improve the quality of a manuscript. To minimize errors Tellwell recommends multiple rounds of editing and proofreading the manuscript, including proofing of the manuscript and book layout as they are revised.
(b) Cover Design. Cover design services include the initial design of the front, back, and spine created by a professional designer using information supplied by the author, as well as two rounds of minor revisions based on feedback from the author and a limited stock image purchasing budget. Additional revision rounds may be purchased. If the author requests complex image manipulation beyond the scope of the Services, additional costs for design time may apply. If the author chooses to incorporate specific and more expensive stock images or artwork into the design, additional costs may also apply.
(c) Interior Layout. Interior layout services include the initial layout of the interior of a book by a professional designer using information supplied by the author, and includes two rounds of minor revisions based on feedback from the author. Additional revision rounds may be purchased. Complex layouts will be assessed for extra costs on a custom quote basis. If proofreading services were not purchased, the author is solely responsible for proofing each version of the design file to identify corrections needed; particularly as errors can occur when importing manuscript files to the software used by professional designers. If the author makes substantial corrections, additions or deletions to the content of a book mid-way through the layout process, a re-layout fee may be charged.
(d) Illustrations. Illustration services include two opportunities for you to influence the illustration: first, by outlining ideas prior to the illustrator starting the work and, second, by giving feedback on sketches provided during the process. The illustrator will have the final say on the illustrations, taking into account the author’s vision and input. Additional fees will apply on a custom quote basis if the author requires additional revisions or complexity is added to the illustrations that go beyond the illustration time allocated for the project by Tellwell. Any revisions after the illustrations have been approved will be considered new illustrations, and will be subject to additional charges.
(e) Marketing and Publicity. Tellwell’s responsibility to publicize the Book and the author will be limited to the scope of book marketing services purchased. Any efforts beyond those set out in the applicable Services description will be provided at Tellwell’s sole discretion. Author website services include securing domain names, basic set up and one year of hosting services, as described in the applicable services description. Annual renewals after the first year, and any additional website work not included in the services description, are subject to additional fees.
(f) Complimentary Copies. Publishing packages include the author receiving a complimentary copy of the Book, up to a $25 value for paperback, and $40 for hardcover. Additional fees will apply if the cost of printing and shipping a particular book exceeds $25 for paperback or $40 for hardcover, which may occur if the book is large, full colour, of high page count or costly to ship.
(g) Printing Services. Tellwell provides printing services and sets printing rates at its discretion, reflecting current business and market conditions. The rates Tellwell sets under its printing program are unrelated to the rates used when an author’s book sells through print-on-demand trade channels. The author does not earn any royalties on books purchased directly from Tellwell. Tellwell may update printing rates at any time.
i. Print-ready files: Unlike many publishing companies, Tellwell does not require the author to print books exclusively with Tellwell. Rather, the author may choose to engage another printer, in which case Tellwell will provide print-ready files at no additional cost if included as part of the purchased Services, or at Tellwell’s published rates if not included in the purchased Services.
ii. Advance print orders: If the author purchased books in advance of the Book being ready for print, the purchase price is valid only based on the production specifications (e.g. page count, format, size, black and white or colour) given at the time of the purchase, and any quote will be invalid if it does not clearly outline sufficient specifications to determine the print cost. If, at the time the book is finished, the actual production specifications are different than what was anticipated or printing market conditions have changed, the price may be updated accordingly by Tellwell. Where the author has purchased and paid in full for books in advance, and where the prices under Tellwell’s printing program have increased between the time of purchase and the time of printing, Tellwell will honor the original quote up to a 10% difference between the original price and the new price. If the difference is greater than 10% the author may either pay the balance above the original quote plus the honored increase, or print a lower quantity of book that fits within the original price paid. Alternatively, the author may request that Tellwell issue a 100% refund for the printing quote that was paid in advance, and Tellwell will refund such amounts within thirty (30) days. This is an exception to Tellwell’s general refund policy, set out in Section 8, below.
iii. Print quality issues: If there is a printing quality issue, Tellwell in its sole discretion will decide when to issue a reprinting of books. As a general rule, Tellwell will reprint books if there is a major error, but not necessarily reprint the books if the issue is deemed minor in Tellwell’s sole discretion. A major error such as pages missing from the book, or pages from the wrong book being inserted due to a printing error, would justify a reprint. In such a scenario the author can contact Tellwell with the details and request a reprinting of the books. Tellwell generally will not reprint books if there are minor printing issues that do not affect the readability and salability of the book.
iv. Proof copies: Tellwell does not require that the author order a printed proof; however, the author may choose to order a proof at an additional cost. The cost and availability of proof copies may vary by printer and book type. The author acknowledges that the binding, paper and ink quality of a proof copy may differ from that of the main book order.
5.3 Changes to the Services
From time to time, Tellwell may update some details or features of Services or the manner in which Services are delivered. Tellwell reserves the right to make reasonable substitutions of Services or of particular features of Services of equivalent value.
6. Distribution
6.1 Distribution Models
“Distribution” refers to the process of making print-on-demand (POD) books, ebooks, and audiobooks available for sale and fulfilling orders through Third Party Channels. The specific formats and distribution channels included will vary depending upon the Services purchased. Tellwell offers three distribution models: Managed Distribution 85, Managed Distribution 100, and Direct Distribution. Managed Distribution 85 is the default distribution model and will apply unless another distribution model is selected and included in the Services.
6.2 Managed Distribution
Under the Managed Distribution 85 and Managed Distribution 100 models, Tellwell manages the distribution of the book via the various distribution channels and consolidates royalty payments to the author. Tellwell ensures that the files submitted to each distribution channel meet the distributors’ requirements. Tellwell guides the author through the process of pricing the book and submitting metadata such as keywords, categories, and other information about the book appropriate to each distribution channel. The difference between Managed Distribution 85 and Managed Distribution 100 is in the upfront price you pay to Tellwell and the royalty percentage that you receive for the Book which is further described in Section 7.2.
6.3 Direct Distribution
Under the Direct Distribution model, the author works directly with each distribution channel and is responsible for the legal, technical, tax, banking and other requirements of each applicable distribution channel. Tellwell provides general information and guidance about each channel and provides final files that meet the specifications of each channel. This option is only suitable for more technically savvy people who don’t mind dealing with greater complexity.
6.4 Third Party Channels
Tellwell may engage Third Party Channels (e.g. Amazon) for the purposes of publishing, marketing, distributing and selling the Book. Tellwell is not responsible for any errors or omissions by such Third Party Channels, and does not provide any warranties, representations, endorsements, approvals or verification of any services provided by such Third Party Channels. Services provided by Third Party Channels may be subject to additional terms and conditions, and Tellwell will endeavour to advise you of any additional material terms imposed by Third Party Channels.
6.5 Book Pricing
When setting up a book in any distribution channel, you may have the opportunity to set the “Suggested Retail Price.” In many distribution channels this price, together with the discount price selected by the author, indirectly determines the royalty the author will earn. However, it is important to note, and you hereby acknowledge, that the Suggested Retail Price does not dictate the final price at which retailers will sell your Book. The final price is determined at the sole discretion of the retailer, and is beyond the control of either the author or Tellwell.
6.6 Distribution Support
Tellwell offers two levels of support with the Managed Distribution models: Basic Distribution Support and Premium Distribution Support. Unless otherwise selected and included in the Services, all publishing projects with Managed Distribution include one year of Premium Distribution Support. A second year of Premium Distribution Support is offered at no cost in exchange for completing Tellwell’s General Client Feedback Survey. After that, each year of Premium Distribution Support is subject to an annual fee. At any time you may choose to downgrade to Basic Distribution Support, which has no annual fee (but which may still be subject to a Third Party Channel market access fee). Premium Distribution Support offers more features and allows for more frequent changes to pricing, discounting, metadata, as well as other features related to distribution channels.
6.7 Market Access Fees
You acknowledge that certain Third Party Channels may charge market access fees as a condition of distributing a book. Where applicable, these fees are collected by Tellwell from authors and remitted to the Third Party Channels.
6.8 Non-Returnable
Books in print-on-demand distribution channels will be listed as “non-returnable” unless an author has opted to include the book in Tellwell’s Book Return Program, in which case the book will be listed with applicable Third Party Channels as returnable. You acknowledge that not all Third Party Channels offer returns.
6.9 ISBNs
Tellwell’s distribution services include securing International Standard Book Numbers (ISBNs) for all book formats purchased by the author. While complimentary ISBNs are provided by Tellwell, authors may provide their own ISBNs. Tellwell will accommodate the use of the author’s ISBN provided that there is no legal, technical or other material reason why it is not able to be used.
7. Royalties
7.1 Definition
“Net royalties” means the actual amount of accrued money Tellwell has received or will receive from a distribution channel, after deducting any bank, currency exchange, market access or distribution channel fees charged by a Third Party Channel (if any), and return costs. Recognizing that some companies may use the term “net royalty” as a cover for hidden fees, and in the interest of transparency, Tellwell will disclose any known deductions when reporting on and paying out royalties. If your bank charges a fee when the royalty is deposited, this is not something that Tellwell would know or report and will be your responsibility. The purpose of defining net royalty is to avoid any scenario where Tellwell is paying out more royalties than Tellwell receives. From time to time or at some date in the future, a Third Party Channel may impose a fee, such as a Market Access Fee, that must be paid for a Book to remain within the particular Third Party Channel. In the event that a Third Party Channel elects to charge a fee, Tellwell will make this known to you and you will be responsible for covering the cost. Tellwell may either issue an invoice to the author for reimbursement of, or deduct such fees from accrued royalties and report this to the Author. Failure to pay any Third Party Channel fee may result in the removal of the Book from the particular Third Party Channel.
7.2 Managed Distribution
Under the Managed Distribution 85 model Tellwell retains 15% of the net royalties received from distribution channels, and will pay you the remaining 85%. Under the Managed Distribution 100 model which is priced differently by Tellwell, 100% of the net royalties will be paid to you. For example, if a book sells at $8.00 via Kindle, and Kindle pays out 70% ($5.60) as a royalty, you would receive $4.76 under the Managed Distribution 85 model (85% of the $5.60) or the full $5.60 under the Managed Distribution 100 model.
7.3 Direct Distribution
Under the Direct Distribution model you will be responsible for establishing relationships with, and receiving royalties directly from, each applicable Third Party Channel without Tellwell’s involvement. Tellwell shall have no responsibility or liability with respect to any royalties paid (or not paid) to you if you select the Direct Distribution model.
7.4 Payment and Right of Set-Off
Net royalties are payable quarterly and, subject to a minimum payment threshold as specified on Tellwell’s websites, will be paid during the second month of each quarter based upon sales during the previous quarter. If the amount of net royalties payable to you for any quarter falls below the minimum payment threshold, royalties will be carried over to subsequent quarters indefinitely until the minimum payment threshold is met, unless the Agreement is terminated. If the Agreement is terminated, Tellwell will pay all net royalties owing in the quarter following the quarter during which the Agreement is terminated, and the minimum payment threshold will not apply. Tellwell reserves the right to deduct any amounts owing by you to Tellwell against any amounts payable to you by Tellwell.
7.5 Estimated Royalties
From time to time, Tellwell may communicate estimated or expected royalty rates using tools such as royalty calculators or charts. You acknowledge and agree that estimated royalties may be affected by your decisions and changes to distribution channel pricing and royalty rates that are beyond Tellwell’s control. In the event of a discrepancy between the expected or estimated royalty communicated to you by Tellwell and the actual royalty received by Tellwell from a distribution channel, the royalty paid to you will always be based on the actual royalty paid out by the distribution channel. Tellwell will use good faith efforts to keep all information up to date and accurate. In the event that a Third Party Channel changes its pricing policy in a manner that would result in a negative royalty, Tellwell reserves the right to unilaterally change the Book setup and pricing of the Book in distribution channels so as to ensure that the royalty is not a negative number.
8. Payments and Refunds
8.1 Fees and Currency
Fees for Services (“Fees”) are due and payable in accordance with the payment schedule set out on the invoice at the time of purchase. Any additional charges will be billed as incurred, and are due and payable net thirty (30) days from the date of invoice. Tellwell is not required to provide any Services not listed on the applicable invoice or for which payment in full has not been received. Unless otherwise specified, all amounts are in Canadian dollars for clients in Canada, and in United States dollars for clients in any other country.
8.2 Late Payment
If any amounts due under these Terms are not received by Tellwell within thirty (30) days of the payment date on the invoice, in addition to any other remedies that it may have, Tellwell may:
(a) charge interest on such amounts at the rate of 12% per year compounded monthly (12.68%, effective rate) or the maximum rate permitted by law, whichever is lower, from the date payment was due until the date that payment is actually received by Tellwell, and/or
(b) set-off the amount of any royalties owed to you against the amount owed to Tellwell.
8.3 Refunds
Except as expressly provided herein, all Fees are non-refundable. Refunds are subject to Tellwell’s right to set off any outstanding amounts owed by you to Tellwell, including any prepaid expenses. For the purposes of this Section 8.3, Services are considered to have been “commenced” when Tellwell has assigned work to internal or contract staff, or when you have submitted information at any stage in Tellwell’s production process that would normally initiate work to be done on the part of Tellwell.
(a) Termination by Tellwell. If Tellwell terminates the Agreement or any portion of the Services, Tellwell will refund to you all prepaid Fees owing in respect of Services that have not commenced as of the effective date of termination. Additionally, Tellwell may provide partial refunds, on a pro rata basis for any partially completed Services, at its sole discretion.
(b) Termination by Author. If you terminate the Agreement or any portion of the Services, refunds for publishing packages or other Services purchased will be made as follows:
(i) Provided that you have not submitted a manuscript and Tellwell has not commenced any editing, design, illustrations, marketing or other material work on any of the Services: (A) within thirty (30) days of the date of receipt of your first payment, Tellwell will issue a refund equal to 100% of the price paid for the Services, less a $99.00 handling fee; and (B) more than thirty (30) days, but less than ninety (90) days from the date of receipt of your first payment, Tellwell will issue a refund of up to 50% of the invoiced amount for the Services. No refunds will be provided more than ninety (90) days after the date of receipt of your first payment.
(ii) Following the submission of a manuscript or the commencement of any Services, refunds shall be at Tellwell’s sole discretion and, if provided, shall (A) be paid only in respect of Services that have not been commenced, (B) if requested within the first thirty (30) days following the date of receipt of your first payment, shall not exceed 50% of the fees paid for the Services that have not yet been commenced, (C) if requested more than thirty (30) days, but less than ninety (90) days from the date of your first payment, will not exceed 35% of the amount fees paid for the Services that have not yet been commenced, and (D) if requested more than ninety (90) days, but less than one hundred and eighty (180) days from the date of your first payment, will not exceed 10% of the fees paid for the Services that have not yet commenced. No refunds will be provided more than one hundred and eighty (180) days after the date of receipt of your first payment.
Any refunds will be issued within thirty (30) days of Tellwell being notified in writing of your decision to terminate the Agreement or cancel any Services covered under the Agreement.
9. Author Warranties and Responsibility for Content; Indemnity
9.1 Author Representations and Warranties
You are solely responsible for the contents of the Author’s Materials and any resulting Book, and your use of the Services. You represent and warrant to Tellwell:
(a) you are the sole author and the sole owner of copyright in the manuscript and all other Author’s Materials;
(b) you are the sole owner of copyright in any associated cover or interior graphics supplied by you, or have obtained all necessary rights and licenses required for their use (i) in the Book, and (ii) by Tellwell for the purpose of performing the Services;
(c) neither the Author’s Materials nor Tellwell’s performance of the Services will infringe upon or misappropriate the rights of any third party including, without limitation, any third party copyright or other intellectual property rights, design, privacy, contractual or publicity rights;
(d) you have full power and authority to enter into and perform the Agreement, and to grant the rights granted to Tellwell thereunder;
(e) the Agreement does not conflict with any arrangements, understandings or agreements that you have with any other party;
(f) neither the Author’s Materials nor their contents are illegal, obscene, hate speech, defamatory, slanderous, or libelous;
(g) neither the Author’s Materials nor their contents, including any recipes, formulae, instructions, advice or recommendations are harmful, nor will they result in damage, injury or death to any person, animal or thing;
(h) you will use the Services only for lawful purposes and in a manner consistent with these Terms and any applicable rules, policies, licenses and guidelines established by Tellwell from time to time in respect of the Services, including the communications and collaboration protocols, resources, tools and templates as invoked by Tellwell from time to time. Without limitation, you agree that you will not use the Services to: engage in conduct that would constitute a criminal or quasi-criminal offence, that would give rise to civil liability, or that would otherwise violate any applicable local, provincial, state, federal or international law, or the rights of any person; and
(i) you will not use or attempt to use Tellwell services, personnel, resources or tools to gain unauthorized access to any person’s information or in a manner that could, in the opinion of Tellwell, make public otherwise private information or adversely affect the ability of Tellwell or its customers to use any Tellwell services or resources, including posting or transmitting information or materials containing worms, viruses, Trojan horses or other disruptive components
9.2 Indemnity
You agree to defend, indemnify and hold Tellwell, its affiliates, distributors, channel partners and licensors, and each of their respective officers, partners, directors, employees and agents, harmless from and against any and all claims, actions or demands, including without limitation reasonable legal and accounting fees, resulting from or related to:
(a) any Author’s Materials, or other data or information provided by you;
(b) your violation of these Terms, including any representation and warranties;
(c) your violation of any third party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality; or
(d) injury or damage to Tellwell or to any third party as a result of the purchase or use of the Book or its contents. You will use your best efforts to cooperate with Tellwell in the defense of any claim. Tellwell reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
10. Tellwell Limited Warranty
10.1 Limited Warranty
Tellwell warrants that the Services will be performed in a good and professional manner, consistent with prevailing industry standards. Your sole remedy for a breach of this warranty shall be either the re-performance of the deficient Services, or a refund of the associated fees in accordance with Section 8.3.
10.2 DISCLAIMER OF ALL OTHER WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1, THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS PROVIDED IN SECTION 10.1, TELLWELL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR BY A PARTICULAR DATE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TELLWELL EXPRESSLY DISCLAIMS THAT:
(I) THE SERVICES WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS;
(II) THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE;
(III) THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND
(IV) ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU ACKNOWLEDGE AND AGREE THAT IF YOU ARE DISSATISFIED WITH OR HARMED BY THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY WILL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 14.
11. Limitation of Liability
11.1. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(A) IN NO EVENT WILL TELLWELL’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THE AGREEMENT, THE SERVICES OR THESE TERMS, WHETHER BY STATUTE, CONTRACT, TORT OR UNDER ANY OTHER FORM OF LIABILITY, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR THE SERVICES THAT ARE THE SUBJECT MATTER OF THE CLAIM; AND
(B) TELLWELL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF TELLWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO THE SERVICES.
11.2. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF TELLWELL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
12. Communications between Author and Tellwell
12.1. Clear communication between you and Tellwell is essential for the success of the Services. Both parties agree to communicate in a calm and respectful manner. Tellwell will not accept abusive behaviour towards, or by, its staff. Publishing a book is a complex project and Tellwell acknowledges how important it is to you and pledges to remember that throughout its dealings with you under this Agreement. The author acknowledges that Tellwell has a demonstrated track record of author satisfaction with its services and you pledge to remember that throughout your dealings with Tellwell under this Agreement. There may be times when there is a legitimate concern that you wish to express, which may include the need to escalate a matter within Tellwell. Tellwell agrees to provide instructions on how to escalate a matter to management to evaluate and to make a good faith determination of how best to resolve the issue.
12.2. You acknowledge and agree that Tellwell may record telephone conversations during the course of providing the Services. Recordings will only be used (a) to improve our services; (b) for training purposes; (c) to ensure quality; (d) to provide a record in the case of a dispute; and (e) to ensure that Tellwell complies with its legal requirements. Recordings will be protected in accordance with our Privacy Policy
13. Privacy
The Privacy Policy available at Privacy Policy is applicable to the collection, use and disclosure of personal information by Tellwell and is incorporated by reference into these Terms. Please read the Privacy Policy carefully prior to purchasing or using the Services.
14. Termination
14.1 Expiry
Unless otherwise specified in the applicable Services or stated in these Terms, all Services including any unused Services shall expire and be deemed completed two (2) years after the purchase date of the Services or July 15, 2024, whichever is later. Distribution services will continue for a minimum period of two (2) years from the date the book is approved for distribution with Third Party Channels. After the Book has been approved for distribution with Third Party Channels for two (2) years, Tellwell may at its option continue distributing the Book through Third Party Channels indefinitely, unless terminated by you or Tellwell. Tellwell will continue to pay royalties to you in accordance with Section 7 while the Book remains in distribution.
14.2 Termination by Author
You may terminate the Agreement at any time and for any reason (or for no reason) by providing written notice to Tellwell in accordance with Section 16.7 (Notice). The termination will be effective seven (7) business days after receipt of the notice is acknowledged by Tellwell.
14.3 Termination by Tellwell
Tellwell may terminate the Agreement, or the provision of any part of the Services hereunder, at any time for any reason (or for no reason), upon written notice to you delivered to the email address set out on your account with Tellwell. The termination will be effective at the time the notice is delivered, or at such other time as may be specified in the notice.
14.4 Effect of Termination or Expiry
Upon the expiry or termination of the Agreement for any reason:
(a) All amounts due to Tellwell shall become immediately due and payable;
(b) Refunds will be issued in accordance with Section 8.3;
(c) Tellwell will give notice to any Third Party Channels with which Tellwell has direct relationships requesting that they cease the production and sale of the Book at the earliest date permissible according to their terms of service. You acknowledge and agree that (i) Tellwell’s agreements with Third Party Channels (“Channel Agreements”) may require distribution periods that exceed the term of your agreement with Tellwell, in which case such Third Party Channels will have the right to continue distributing the Book for the term specified in the Channel Agreement, and (ii) even after Third Party Channels have ceased selling the Book, previously sold copies may continue to be resold online. Further, you acknowledge that, even after a Third Party Channel has ceased to sell the Book, some listings, advertisements, previews, excerpts, or other references to the Book may continue to be seen on the Internet in perpetuity. Tellwell does not control, and cannot be responsible for the acts or omissions of, any Third Party Channel
(d) Sections 3, 4.2-4.6, 8, 9, 10, 11, 14.4 and 15 shall survive termination or expiry of the Agreement in accordance with their terms.
15. Governing Law and Dispute Resolution
15.1 Governing Law
You agree that these Terms, the Agreement and the Services, are governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable therein (excluding conflicts and choice of laws principles). The Agreement and any other contract formed through the purchase and use of the Services will be deemed to have been formed and executed within the Province of British Columbia, Canada. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
15.2 Dispute Resolution
(a) Means of Resolution. You agree that any disputes arising under the Agreement or otherwise in connection with your use of the Services will be resolved through arbitration under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, as amended from time to time. Arbitration will be held in Victoria, BC, Canada, and conducted in the English language. Notwithstanding the foregoing, you agree that:
(i) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and
(ii) Tellwell may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.
(b) Class Waiver. You acknowledge and agree that you and Tellwell are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Tellwell otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable, then the entirety of this Section 15.2 will be deemed void.
15.3 Jurisdiction and Venue
If Section 15.2 is deemed void or is otherwise inapplicable or unenforceable, all disputes under these Terms will be resolved by a court of competent jurisdiction located in Vancouver, British Columbia, Canada, provided that the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief.
16. General
16.1 Right to Refuse to Provide Services
Notwithstanding any other provision of these Terms, Tellwell will not be obliged to publish any book or to provide any other services if, at any point and in Tellwell’s sole opinion, to do so would be illegal, immoral, unethical, inflammatory, or would constitute a violation or infringement of any party’s dignity, intellectual property or privacy rights. Without limitation, Tellwell reserves the right to refuse to publish any book which, in its sole opinion, contains objectionable, vulgar, abusive, defamatory, libelous, racist, sexist or obscene material, is infringing, or which promotes hate, violence or illegal activity. If Tellwell refuses to provide any services, Tellwell’s sole liability shall be as set out in Section 8.
16.2 Minors
If you are under the age of 19, you may only purchase and use Tellwell’s services with the consent and under the supervision of a responsible adult.
16.3 Changes to these Terms
Tellwell reserves the right to modify, supplement or replace these Terms, effective thirty (30) days from posting the changes on its website or otherwise notifying you of the change. Your continued use of the Services following the posting of changes to these Terms or receipt of notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Services. Unless required by law, changes other than Section 14.1 pertaining to expiry of the Terms, will not apply to any Services that were performed prior to the date that the change came into effect.
16.4 Confidentiality
“Confidential Information” means any Tellwell information that is reasonably considered in the circumstances to be confidential or proprietary, including, but not limited to methodology, instructions, consultation materials, trade secrets, software, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, templates, business plans and strategies, pricing and other financial information, and any other business and/or technical information and materials, whether in oral, written, electronic, graphic or machine-readable form. You agree to keep the Confidential Information in strict confidence, and to not use or disclose the Confidential Information for any purpose other than as required for your use of the Services.
16.5 Force Majeure
Neither party will be liable for delay or failure in performance (other than the making of payments) resulting from any cause beyond the reasonable control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable.
16.6 Assignment
You may not assign any of your rights or obligations under the Agreement without Tellwell’s prior written consent. Tellwell may freely assign its rights and obligations under the Agreement, either in part or in full, without notice to you.
16.7 Notice
Tellwell may communicate with you about the Services, the Agreement or these Terms, including any changes to these Terms, by email to the address indicated on your invoice, or by posting notices on its website. Unless expressly prohibited by law, you consent to receive communications relating to the Services or our business relationship from Tellwell electronically, and agree that all notices, waivers, agreements, disclosures and other communications satisfy any legal requirements that such communications be in writing. Communications with Tellwell regarding this Agreement may be sent by email to legal@tellwellpublishing.com; provided that any legal notices must be delivered by hand or by commercial courier to Tellwell at 2031 Store Street, Victoria, British Columbia Canada V8T 5L9, during normal business hours.
16.8 Nature of Relationship
Nothing in these Terms, the Agreement or arising from your use of the Services will create or be deemed to create any partnership, joint venture, agency, franchise or other business relationship between you and Tellwell, even if your use of the Services is for a commercial purpose which has been authorized by us. You and Tellwell will, at all times, be and remain independent contractors.
16.9 Severability
The provisions of these Terms are severable. If any individual provision is held to be invalid, unenforceable or contrary to applicable law, such provision shall be construed, limited, altered or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict with applicable law while endeavoring to preserve the intention of these Terms, and all other provisions shall remain in full force and effect.
16.10 Waiver
The failure by Tellwell to exercise or enforce any right or remedy under these Terms will not constitute a waiver of such right or remedy.
16.11 Entire Agreement
These Terms (including all materials incorporated by reference), the Privacy Policy, and the invoice for the Services, constitute the entire agreement between you and Tellwell governing your purchase and use of the Services.
Please note, prior to November 2023, IndieMosh was an imprint owned by Mosher’s Business Support Pty Ltd., with its own set of terms and conditions.