BookSense.com Letter of Agreement To download this letter in pdf format, click here. AGREEMENT BETWEEN BOOK SENSE, INC. AND BOOKSENSE.COM PARTICIPANTS This Agreement ("Agreement") is entered into as of the last date set forth below (the "Effective Date"), by and between Book Sense, Inc., a Delaware corporation with a principal place of business at 200 White Plains Rd., Tarrytown, New York 10591 ("BSI") and the participant, identified below ("Participant"). __________________________________________________ Name of Store __________________________________________________ Contact Person __________________________________________________ State in which Store is Incorporated __________________________________________________ Phone Number __________________________________________________ Address __________________________________________________ Fax Number __________________________________________________ City                                     State                              Zip __________________________________________________ E-mail Address __________________________________________________ Bank Acct. and Bank Routing Number WHEREAS, Book Sense is a wholly-owned indirect subsidiary of the American Booksellers Association, Inc., a New York not-for-profit corporation ("ABA"), and Book Sense has created a presence on the World Wide Web to assist, promote and benefit participating members of the ABA, including Participant; WHEREAS, Participant desires to use the BookSense.com Website during the Term to enable Participant to establish and maintain an online presence; WHEREAS, Participant is an ABA Regular Bookstore Member who operates one or more bookstores with (an) actual physical storefront location(s) who desires to have a Website on the BSI Web Server and is a current participant in the Book Sense marketing program.      NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements set forth below, the parties agree as follows: 1. Definitions. 1.1. "Back-End Features" means the Licensed Data, BSI's proprietary search engine, BSI's proprietary shopping cart technology, and BSI's proprietary, web-based administrative tools. 1.2. "BookSense.com" means the project in which Participant will be able to create and manage a Website that will be located on the BSI Web Servers, and will be accessible on the World Wide Web by use of Web Browsers. 1.3. "BookSense.com Home Page" means the first page viewed by Users who visit the http://www.booksense.com/ URL. 1.4. "Content" means marketing collateral, data, copy, text, audio files, video files, graphics and other material provided by BSI. 1.5. "Home Page" means the first page typically viewed by users on any Website. 1.6. "Internet" means the world-wide network of computers that provide access to the World Wide Web. 1.7. "Licensed Data" means (a) the data elements in electronic database form for each title contained in the database provided by BSI's title database supplier ("Bibliographic Data"), and enhancements thereto; (b) any updates provided to the Bibliographic Data or to enhancements thereto; and (c) such other data elements as may be added to the Bibliographic Data from time to time. Licensed Data will not include any Content or Participant's Content. 1.8. "Look and Feel" means the image and appearance of the BookSense.com Website. 1.9. "Marks" means the trademarks or service marks that will be used on or in connection with or associated with the BookSense.com Website that BSI has the right to use and to authorize others to use. The Marks currently intended for such use include the marks BOOK SENSE, BOOKSENSE.COM, INDEPENDENT BOOKSTORES FOR INDEPENDENT MINDS, and the BOOK SENSE logo as shown in the Book Sense marketing program participant's kit that was provided to Participant with the Marketing Program Letter of Agreement. 1.10. "Participant" means the Book Sense bookstore that is a party to this Agreement. 1.11. "Participant's Content" means the marketing collateral, data, copy, text, audio files, video files, graphics and other materials provided by Participant and used on Participant's Website. 1.12. "Participant's Website" means the unique Web Pages hosted on the BSI Web Servers that are available through use of the unique URL assigned to Participant owned and/or operated by Participant for, among other things, the sale of products solely to end users who are prospective consumer purchasers of products. 1.13. "Self Authored Website" means a Website owned and/or operated by Participant for, among other things, the sale of products solely to end users who are prospective consumer purchasers of products, that is not hosted on the BSI Web Servers but that is linked to or otherwise connected with BookSense.com. 1.14. "Store Fulfilled Order" is any order placed by a User that will be filled at least in part by the Participant. Store Fulfilled Orders include, without limitation, orders that Users have designated as "Pick up in Store," international orders, tax-exempt orders, orders with a method of payment other than credit card, orders in excess of $150 (US), specific titles that are not carried by BSI's wholesale fulfillment partners, and specific titles that are not currently in stock at BSI's wholesale fulfillment partners. 1.15. "User" means any person or entity who uses Participant's Website. 1.16. "Web Browser" means software designed to allow interactive access to the World Wide Web, including without limitation, Navigator, Explorer, and the AOL web interface. 1.17. "Web Page" means a document or file that is intended to be accessible to Internet users with a Web Browser. It may be formatted in HTML or other coding. 1.18. "Web Server" means a computer operated for making Websites available on the Internet. 1.19. "Website" means a series of interconnected Web Pages which either may be dynamically generated or reside in a single directory or multiple directories on a single Web Server or multiple Web Servers. 1.20. "Wholesaler Fulfilled Order" includes orders fulfilled by BSI's wholesale fulfillment partners. Any order or portion of an order not designated as a Store Fulfilled Order will be a Wholesaler Fulfilled Order. Orders may have portions that are Wholesaler Fulfilled Orders and other portions that are Store Fulfilled Orders. 1.21. "Works" means the BookSense.com Website, Content and related materials, including without limitation those graphics and artworks created by or for BSI for the BookSense.com Website. 1.22. "World Wide Web" means all the Web Pages that are accessible to a typical computer user with appropriate access to the Internet using a Web Browser. 2. General Obligations of Participant. 2.1. Participant will pay BSI a one-time nonrefundable setup fee of $350. This payment is due and payable by Participant upon signing this Agreement. 2.2. Participant will pay BSI $225 per month during the term of this Agreement. Payment for each month must be received on the first day of that month (or the next business day) and shall be made by ACH transwer. Participant authorizes BSI to debit Participant's checking account for recurring monthly fees as they become due. If this payment is not timely received by BSI, access to Participant's Website by Users may be blocked until payment for all arrears is received. 2.3. Participant shall pay BSI a royalty of four and one half per cent (4.5%) on the portion of orders made through Participant's Website that are Wholesaler Fulfilled Orders. This royalty will be calculated on the selling price of the goods sold and is calculated before tax and shipping costs are included. This royalty will not be calculated on the portion of orders that are Store Fulfilled Orders. This royalty will be collected and retained by BSI as set forth below. 2.4. BSI may enter into certain arrangements with various third parties ("Affiliates") to, among other things, have the Affiliate refer and direct users of the Affiliate's Website to the BookSense.com Website. For each User that (i) is referred to the BookSense.com Website by an Affiliate; and (ii) makes a purchase at Participant's Website or Self Authored Website or which is credited to Participant's Website as a Self Authored Website, Participant shall pay BSI a royalty, expressed as a percent of such sale (the "Affiliate Fee"). The percentage for the Affiliate Fee will vary from Affiliate to Affiliate, but in no case will it exceed ten percent (10%). This Affiliate Fee is calculated on the selling price of the goods sold and is calculated before tax and shipping costs are included. BSI will send Participant a quarterly invoice for all Affiliate Fees that are due and owing for the prior quarter. Payment of the Affiliate Fee of Participant to BSI will be by ACH transfer from Participant's checking account, which BSI will debit within thirty (30) days from the date of the invoice. 2.5. Participant must have provided to BSI a signed "Marketing Program Letter of Agreement," i.e., Participant must be a "Book Sense store." Participant must comply in all respects with the Marketing Program Letter of Agreement, as it may be amended from time to time. 2.6. Participant is responsible for and will pay any and all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated hereby, excluding any taxes which may be levied on BSI's net income. BSI will provide a report to Participant detailing Participant's state sales tax obligations for online sales made through Participant's Website based on the information provided to BSI by Participant. In general and without limitation, it is anticipated that the BSI report to Participant will reflect that state sales taxes will be levied and paid on all sales made through Participant's Website to Users in the state(s) where Participant maintains an actual physical storefront location(s) or in a state(s) where BSI conducts operations. Participant will be responsible for remitting to its state taxing authority(ies) taxes in the state(s) where Participant maintains an actual physical storefront location(s). If Participant makes sales into states outside of the state(s) where Participant maintains an actual physical storefront location(s), BSI will, if and when it deems it appropriate, remit the sales tax payments to such states' taxing authority, and the payment shall be deducted from Participant's revenues. 2.7. Participant shall not sell, offer for resale, rent, sub-license or lease all or any portion of the Licensed Data. 2.8. Participant may only display the Licensed Data at Participant's Website(s) to Users who are prospective consumer purchasers of products. 2.9. Participant agrees to use its best efforts to fill the Store Fulfilled Orders in a timely manner. 2.10. Participant agrees to accept American Express, Visa, MasterCard and Discover credit cards as forms of payment for orders. 2.11. Participant agrees to promptly update the BookSense.com administrative tool -- the set of Web Pages each Participant will use to create, edit and manage the Participant's Website -- when managing and processing orders. 2.12. Participant agrees to honor the BookSense.com return policy, which may be found in its most current form on the BookSense.com Website, for all returns of online sales. 2.13. Participant agrees to follow the then-current procedures as may be established by BSI from time to time when returning books to wholesale fulfillment partners for those purchases that were Wholesaler Fulfilled Orders and returned by User to Participant. These procedures may be found in their most current form on Participant's local administration pages. 2.14. Participant agrees to use its best efforts to routinely change content in the Participant's Website, and at a minimum, to change some portion of Participant's Home Page at least once a week. 2.15. Participant agrees to gift wrap books and include a gift message with orders when so requested by Users. Participants may charge a fee for this service. 2.16. Participant agrees to feature and display and not obscure banner ads or other advertising as may be provided by or on behalf of BSI from time to time for display on Participant's Website Home Page. 2.17. Participant agrees not to post or allow others to post anything on the BookSense.com Website and/or Participant's Website that violates any copyright, trademark, trade secret, patent, libel, antitrust or other federal, state or local law, regulation, or other enforceable right. 2.18. Participant agrees to allow BSI to inspect and use the aggregate sales and User data from Participant's Website, so long as this data is aggregated with other comparable data from the other participants' Websites. Any such use will be limited to furthering the marketing goals of BSI. BSI will not access individual User sales history data without Participant's or User's prior consent. BSI also may grant its vendors the right to use certain aggregate data of the type referred to above, along with similar restrictions. 2.19. Without any further notice, Participant authorizes BSI, on behalf of Participant and on behalf of User, as applicable, to process credit cards for Wholesaler Fulfilled Orders, collect money from Users, retain the Wholesaler Fulfilled Order royalty identified above, pay all parties that are entitled to payments from each sale (which include without limitation credit card processors, order fulfillment houses and taxing authorities in certain instances) and remit the balance to Participant on a semi-monthly basis, typically, around the first and the fifteenth of each month. Participant authorizes BSI to debit Participant's checking account via ACH transfer for recurring monthly fees as they become due. 2.20. Participant agrees to direct any and all questions about issues regarding Booksense.com to BSI. Participant agrees that it will not contact any BSI vendor regarding any technical issue or question concerning BookSense.com, the Licensed Data, credit card processing, any Back-End Feature or any other aspect of BookSense.com. Participant's failure to abide by its obligation not to contact BSI vendors as set forth in this section may be grounds for termination of this Agreement without any further notice, in BSI's sole discretion. 3. Self Authored Websites. 3.1. Booksense.com Banner Ad. Participant agrees to feature and display and not obscure banner ads or other advertising as may be provided by or on behalf of BSI from time to time for display on the Self Authored Website Home Page. 3.2. Non-Availability of Certain Tools. Participant acknowledges that certain of the administrative tools BSI provides for Participant's Websites are not available for Self Authored Websites (currently, such as those administrative tools used for managing and editing "local" and "national" content provided by BSI and for creating the appearance and layout of the Participant's Website). 3.3. Costs. Any and all costs incurred in integrating the Self Authored Website with the Back-End Features shall be borne solely by Participant. 4. BSI Obligations. 4.1. BSI will provide Participant with the tools to create Participant's Website, and BSI will host Participant's Website on the BSI Web Server. Participant's Website will be branded with the identity of Participant, as Participant chooses. The BookSense.com Website will include: 4.2. a database of more than two million book titles; 4.3. the ability for Users to search and browse the title database; 4.4. the ability for Users to use a credit card to purchase books and other merchandise through Participant's Website or Self Authored Website; 4.5. Content for Participant to use as its own on Participant's Website or Self Authored Website; 4.6. a navigational system to maneuver through Participant's Website; 4.7. a series of administrative tools to allow Participant to manage Content and Participant's Content; 4.8. the ability for Participant to manage orders; 4.9. the ability for Participant to access User information; 4.10. the ability for Participant to download User e-mail addresses (when permission to do so has been granted by the User); 4.11. the ability for Participant to set store pricing policies; and 4.12. the ability for Participant to view sales and User reports. 4.13. the ability to allow Participant to link, via the Internet, to all or a portion of the Licensed Data stored on the BSI Web Server; 4.14. the ability to display in any order, all or a portion of the Licensed Data, which portions may be selected by BSI and/or Participant, for display on the Booksense.com Website, the Participant's Website, or a Self Authored Website solely for the purpose of enabling Users to view the Licensed Data; 4.15. the ability to allow Participant to add Content and/or Participant's Content along with and/or in combination with the Licensed Data; and 4.16. the ability for Users to search a database to locate Participant's stores within a predefined distance from a zip code entered by User; and 4.17. support to Participant in developing and operating Participant's Website and will be responsible for answering questions regarding Booksense.com, Licensed Data, credit card processing, Back-End Features and any other aspect of Booksense.com. 4.18. BSI agrees to use its best efforts to promote the BookSense.com Website, as BSI may determine in its sole discretion. 5. Ownership and License Rights 5.1. Rights in the Works. BSI is and will be the owner of the Works, including but not limited to, the Content, the BookSense.com Website as a whole, as a compilation or a collective work, and all related marketing and promotional materials, other than as specifically owned or reserved by Participant or third parties. Nothing hereunder shall prevent BSI from reusing or authorizing others to use any Content, the Marks, the Licensed Data or the Look and Feel of the BookSense.com Website. Participant shall acquire no right, title or interest of any kind in the BookSense.com Website, Content, Licensed Data and/or the Look and Feel of the BookSense.com Website as a result of this Agreement. 5.2. License from BSI to Participant to Use Content. During the term of this Agreement, BSI grants Participant a limited, non-exclusive license to use the Content in connection with Participant's Website and in the advertising, marketing and promoting thereof. 5.3. License from BSI to Participant to Use the Marks. During the term of this Agreement, BSI grants Participant a limited, non-exclusive license to use the Marks solely in connection with Participant's Website, including the right to use the Marks in advertising, marketing and promoting Participant's Website. 5.4. No Sublicensing. Participant agrees not to resell, lease or otherwise license or attempt to authorize others to use the Content, the Marks, the Look and Feel of the BookSense.com Website, Licensed Data, any components of the foregoing and/or the code or other databases used to create or operate or impart functionality to any of the foregoing. 5.5. Rights in the Marks and the Look and Feel of the BookSense.com Website. Participant agrees that, as between itself and BSI, the Marks and any goodwill associated with the Marks, as well as the Look and Feel of the BookSense.com Website, shall be owned exclusively by BSI and all use shall inure solely to the benefit of BSI. 5.6. Proprietary Notices. In no event shall Participant alter, remove, obscure, erase or deface or hide from view, any copyright, trademark or other proprietary rights or other notice of any party contained on or incorporated into any Web Page on the Participant's Website. 5.7. License from Participant to BSI to Use Participant's Content. During the term of this Agreement, Participant grants BSI a limited, non?exclusive, royalty-free license to use Participant's Content, for the purpose of rendering BSI's services under this Agreement. 5.8. License from Participant to BSI to Use Participant's Trademarks. During the term of this Agreement, Participant grants BSI a limited, non-exclusive, royalty-free license to use trademarks and service marks owned by Participant that are used by Participant on Participant's Website, for the purpose of rendering BSI's services under this Agreement. 6. Term and Termination. 6.1. Term. This Agreement shall be effective when signed by both parties and thereafter shall remain in effect for one year unless terminated pursuant to the provisions of this Agreement. At the end of the one year term of this Agreement, this Agreement shall automatically renew for additional one year terms, unless at least thirty (30) days prior to such renewal date either party notifies the other party in writing of its intention not to renew the Agreement. 6.2. Termination of Agreement. 6.2.1. Termination for Cause. In the event that either party hereto materially defaults in the performance of any of its duties or obligations under the Agreement and/or the Marketing Program Letter of Agreement and does not substantially cure such default within ten (10) days after being given written notice specifying the default, then the non-defaulting party may, by giving written notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination. If either party breaches any of its representations and warranties, the other party may terminate this Agreement without further notice. 6.2.2. Termination for Convenience. Participant may, at any time, terminate this Agreement for any reason by providing BSI with written notice of Participant's desire to terminate the Agreement. BSI may terminate this Agreement if BSI determines to suspend or cease developing or deploying the BookSense.com Website. 6.2.3. Effect of Termination. Upon termination of this Agreement, Participant will pay BSI for all services rendered by BSI and all royalties or other fees due and owing to BSI through the effective date of such termination, within 30 days after the effective date of such termination. Upon termination of this Agreement, Participant shall make no further use of the Licensed Data, the Marks or the Content Website without BSI's prior written permission. Upon termination of this Agreement, each party shall either return the other's Confidential Information in its possession (including all copies) or shall, at the disclosing party's direction, destroy the other party's Confidential Information (including all copies) and certify its destruction to the disclosing party. The foregoing obligation concerning return or destruction of Confidential Information shall not apply to information or data generated by Participant's participation in the BookSense.com Website or the Book Sense program. Upon termination of this Agreement, BSI shall make no further use of Participant's Marks, or Participant's Content. Upon termination of this Agreement, BSI shall submit to Participant a final report and any monies owing to Participant by virtue of sales made by Participant through Participant's Website. 6.2.4. Effect of Termination on Marketing Program Letter of Agreement. Termination of this Agreement does not automatically terminate the Marketing Program Letter of Agreement, which must be specifically and separately terminated. Termination of the Marketing Program Letter of Agreement automatically terminates this Agreement without further express statement or notice. 6.2.5. Survival. Termination of this Agreement for any reason shall terminate each party's obligations under this Agreement except for those provisions of Section 2.21 (No Contact with BSI Vendors), Sections 6.2.3 and 6.2.4 (Effect of Termination), Section 7 (Confidentiality), Section 8 (Participant's Representations and Warranties), Section 9 (BSI's Representations and Warranties), Section 10 (Exclusion of Representations and Warranties), Section 11 (Limitations of Liability), Section 12 (Indemnification), and Section 14.3 (Governing Law), all of which shall survive termination of this Agreement. 7. Confidentiality. 7.1. Confidential Information. The parties acknowledge that each may be exposed to confidential information relating to the other party's business under this Agreement. BSI acknowledges that sales and User data from Participant's Website is deemed to be confidential information. The confidential information which each party may receive from the other party shall be used for the sole purpose of performing under this Agreement. The parties agree that, during the Term and after the termination or expiration of this Agreement, neither party will disclose to any third party any such confidential information without the prior written consent of the other party, except (i) to employees, agents, auditors, contractors, directors and similar entities, solely required to fulfill the terms of this Agreement, and as long as such third parties agree to be bound by the confidentiality provisions hereof, or (ii) as may be required by law. In the event of disclosure under clause (ii), the receiving party will provide the disclosing party with prompt notice so that the disclosing party may seek a protective order or other appropriate remedy, and the receiving party will not oppose action by the disclosing party to obtain such an order or remedy. 7.2. Exclusions. The confidentiality obligations between the parties will not apply to any information which: (a) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the receiving party, (b) the receiving party can demonstrate as already in its possession prior to disclosure hereunder, or is subsequently disclosed to the receiving party with no obligation of confidentiality by a third party having the right to disclose it or (c) is independently developed by the receiving party without reference to the disclosing party's Confidential Information. 8. Participant's Representations and Warranties. 8.1. Participant represents and warrants that Participant has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereunder. 8.2. This Agreement has been duly and validly executed by Participant and constitutes the valid and binding Agreement of Participant in accordance with its terms. 8.3. Participant represents and warrants that all information it has provided about itself to BSI is true and accurate in all material respects to the best of its knowledge, information and belief. 8.4. Participant represents and warrants that Participant's Content and the exercise of any rights granted herein will not constitute defamation of any person, firm or corporation, or violate or infringe the trademark, trade name, copyright, patent, literary, artistic, dramatic, personal or property rights of any person, firm or corporation including the right of privacy or publicity and shall not violate the trade secrets of any person, firm or corporation, nor have any claims of infringement or other violation been threatened, raised or asserted against Participant concerning Participant's Content. 9. BSI Representations and Warranties. 9.1. BSI represents and warrants that it has full corporate power and authority to execute and delivery this Agreement and to consummate the transactions contemplated hereby. 9.2. This Agreement has been duly and validly executed and delivered by BSI and constitutes the valid and binding Agreement of BSI, enforceable against BSI in accordance with its terms. 10. Exclusion of Representations and Warranties. ALL SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NEITHER BSI NOR ANY OF ITS AFFILIATES, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS, AGENTS OR LICENSORS WARRANTS THAT THE SERVICES OR PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DO THEY WARRANT THAT CERTAIN RESULTS MAY BE OBTAINED BY PARTICIPANT IN CONNECTION WITH BSI'S RENDERING OF SERVICES OR PROVISION OF PRODUCTS HEREUNDER. BSI AND ITS AFFILIATES, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS, AGENTS AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR REPRESENTATION EITHER EXPRESS OR IMPLIED REGARDING THE MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER BOOKSENSE NOR THE SUPPLIER OF THE LICENSED DATA MAKE ANY WARRANTIES WHATSOEVER REGARDING THE LICENSED DATA. 11. Limitations of Liability. 11.1. EXCEPT FOR LIABILITY ARISING FROM A CLAIM FOR A VIOLATION OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS OR OF SECTION 7 (CONFIDENTIALITY), NOTWITHSTANDING ANY TERM OR PROVISION CONTAINED IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON, FIRM OR CORPORATION, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING YET NOT LIMITED TO DAMAGES BASED UPON LOSS OF PROFITS AND/OR LOSS OF BUSINESS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE THEREOF, THE USE OF THE PRODUCTS PROMISED OR SERVICES DELIVERED PURSUANT TO THIS AGREEMENT, AND/OR AN ALLEGED BREACH OF THIS AGREEMENT, WHETHER OR NOT THAT PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 11.2. EXCEPT FOR LIABILITY ARISING FROM A VIOLATION OF SECTION 7 (CONFIDENTIALITY) OR ARISING UNDER SECTION 12 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON, FIRM OR CORPORATION, FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE THEREOF, THE PRODUCTS OR SERVICES DELIVERED PURSUANT TO THIS AGREEMENT, AND/OR AN ALLEGED BREACH OF THIS AGREEMENT, IN ANY AMOUNT OF MONEY WHICH SHALL EXCEED (I) IN THE CASE OF CLAIMS AGAINST BSI, THE AMOUNT OF THE FEES PAID BY PARTICIPANT TO BSI; AND (II) IN THE CASE OF CLAIMS AGAINST PARTICIPANT, THE AMOUNT OF FEES DUE TO BE PAID BY PARTICIPANT TO BSI IN THE TWELVE (12) MONTHS BEFORE THE CLAIM AROSE. 11.3. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL APPLY TO ALL CAUSES OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS, AND LIABILITY BASED UPON THE PROVISIONS OF ANY PART OF THIS AGREEMENT AND ANY FEDERAL, STATE AND/OR LOCAL LAW AND/OR ORDINANCE. THE LIMITATIONS ON LIABILITY REPRESENT A FUNDAMENTAL TERM OF THIS AGREEMENT AND NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT THEIR INCLUSION. 11.4. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT, MAY BE BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. 12. Indemnification. 12.1. Participant (the "Indemnifying Party") will indemnify and hold BSI and its affiliates, officers, directors, employees, agents and representatives harmless from and against all damages, costs, expenses, and liabilities, including without limitation, reasonable attorneys' fees and expenses, arising from any action, claim, suit or proceeding ("Proceeding") brought by a third party as a result of the Indemnifying Party's breach or performance or nonperformance of this Agreement. 12.2. Participant (the "Indemnifying Party") will indemnify and hold BSI and its affiliates, officers, directors, employees, agents and representatives harmless from and against all damages, costs, expenses, and liabilities, including without limitation, reasonable attorneys' fees and expenses, arising from any Proceeding and incurred by BSI, directly or indirectly as a result of such Proceeding (i) brought against any vendor or supplier of BSI by Participant relating to this Agreement, including without limitation against the supplier of the Licensed Data, where such Proceeding arises out of, is related to or is in connection with, the Licensed Data or this Agreement; (ii) relating to any modifications, however slight, made by or on behalf of or through access gained through Participant, of the Licensed Data, whether or not such modifications are permitted hereunder. 12.3. BSI (the "Indemnifying Party") will defend or settle, at its expense, any action brought or allegation made against Participant to the extent that it is based upon a claim brought by a third party that the Marks or the Works, as provided by BSI to Participant under this Agreement and used within the scope of this Agreement, infringe upon any United States copyright, patent, trade secret or registered trademark, and will pay all costs, damages and reasonable attorneys' fees attributable to such claim that are incurred by Participant as a result of such claim. 12.4. The right of a party to be indemnified as set forth herein shall be subject to all of the following: (a) the indemnified party (the "Indemnified Party") must notify the Indemnifying Party in writing promptly upon learning that a proceeding has been or may be asserted, (b) the Indemnifying Party shall have sole control over the defense of the Proceeding and any negotiations for the settlement or compromise thereof, and (c) the Indemnified Party shall provide reasonable assistance and cooperation to the Indemnifying Party to facilitate the settlement or defense of any such Proceeding. 13. Notice. Any notice required or permitted to be given under this Agreement shall be in writing and deemed given and effective upon delivery if sent by personal delivery or five (5) days after posting if sent by certified United States mail, return receipt requested, with postage pre-paid and addressed to the addresses set forth above or by email or facsimile transmission, if transmitted to the most current email address or facsimile number set forth above or as may be provided to the other party in writing. Any contact information may be changed by written notice to the other party as provided herein. 14. General. 14.1. Force Majeure. Neither party shall be liable to the other party for any delay or failure to perform any of the obligations set forth in this Agreement due to causes beyond its reasonable control ("Force Majeure Event"). Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay. 14.2. Assignment. This Agreement and any rights and obligations thereunder may not be assigned in whole or in part by Participant without the prior written consent of BSI. Any attempted assignment in violation of the foregoing provision shall be invalid. Either party may assign all of its rights indivisibly to a parent company or subsidiary of that assigning party. The parent company or subsidiary in question must agree in writing to comply with the assigning party's obligations under, and to be bound by, this Agreement. This clause does not in itself authorize the assigning party to delegate its duties under this Agreement. 14.3. Governing Law. This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the state of New York, without reference to its conflicts of law principles. Any and all disputes between the parties that cannot be settled by mutual agreement shall be resolved solely and exclusively in the local and federal courts located within New York, New York, and each party hereby consents to the jurisdiction of such courts and irrevocably waives any objections thereto, including without limitation, on the basis of improper venue or forum non conveniens. 14.4. Severability. If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way. 14.5. Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended for convenience of reference and are not intended to explain, modify or place any construction or limitation upon any of the provisions of this Agreement. 14.6. Entire Agreement; Amendment. No representations of any kind made by either party that are not expressly stated herein or in any written amendment hereto or in the Marketing Program Letter of Agreement shall be binding on such party. Notwithstanding the foregoing, because the Book Sense project is a work in process, and the BookSense.com Website will be changed as appropriate to meet changing market conditions, and to remain competitive, BSI reserves the right to change the terms of this Agreement upon written notice. Such notice may be as provided by Section 13 herein, or may be effected by a posting on the BookSense.com Website and/or the BookWeb.org Website. Participant's continued use of the BookSense.com Website following such notice shall be conclusively deemed acceptance of such changes. The parties agree this Agreement, the Schedules to this Agreement (if any), and the Marketing Program Letter of Agreement shall constitute the complete and exclusive statement of the agreement between them, and supersede all prior or contemporaneous proposals, oral or written, and all other communications between them relating to the subject matter hereof. 14.7. No Third-Party Beneficiaries. Nothing in this Agreement is intended to, or shall, create any third-party beneficiaries, whether intended or incidental, and neither party shall make any representations to the contrary. IN WITNESS WHEREOF, each party has caused this Agreement to be executed on its behalf as of the date set forth below. BOOK SENSE, INC. __________________________________________ Signature __________________________________________ Printed Name __________________________________________ Title __________________________________________ Date   PARTICIPANT __________________________________________ Signature __________________________________________ Printed Name __________________________________________ Title __________________________________________ Date  8/29/03 Topics: Book Sense,