BIG UNIVERSE ONLINE PUBLISHING AGREEMENT

IMPORTANT -- READ CAREFULLY:  Before Big Universe, Inc. (“Publisher”) can publish your Work on its website, you must read and fully consent to this Publishing Agreement and the big universe terms of use, which IS incorporated here by reference (collectively, the “Agreement”).  Your use of Publisher’s services, and the terms by which Publisher will Publish your Work, are governed by this Agreement and are contingent on your acceptance of the Agreement including the right of first refusal set forth in Section 5 below.  Please read this Agreement carefully and make sure that you fully understand it.  You will have the opportunity to choose to accept or reject this Agreement.  You may not use Publisher’s services (as defined below), and Publisher will not publish your Work on its website, unless you click on the <I accept the terms> box.  Because Publisher receives submissions from many sources, it is not able or willing to accept different terms and conditions proposed by different individuals.  No different or additional terms set forth in any invoice or other document submitted by you, previously or hereafter, will affect our agreement.  This officer is made expressly conditional on these terms. 

1. Engagement.  Pursuant to this Agreement, you are engaging Publisher to publish on its website (the “Services”) a compilation of textual, graphical, and/or other materials (potentially including, but not limited to text, computer code, photographs, illustrations, sounds, graphics, video clips, audio clips, or other data in any format whatsoever) that you have authored (the “Work”).   Notwithstanding the foregoing, Publisher retains full discretion to decline to publish your Work on its website and to withdraw the Work from publication on its website, for any reason (or for no reason), including but not limited to if publication may result in liability to Publisher or to you; if the Work is obscene, libelous, or infringes upon the rights of a third party; or if the Work is of poor quality.  If Publisher has already published the Work, but thereafter decides to withdraw it from publication, Publisher may do so at its discretion.  Once you submit the Work for publication, you may not make any alterations except as requested or permitted by Publisher.

2. Ability to Accept Terms of Agreement.  You understand and agree that this website and the Services are for adults and children 13 and older.  Accordingly, you represent that you are either: a) at least 18 years old; or b) at least 13 years old with verifiable legal parental or guardian consent, and fully able and competent to enter into the terms and conditions set forth in this Agreement. 

3. License of Rights.  By submitting the Work for publication on this website, you hereby grant to Publisher the non-exclusive, worldwide, transferable (whether by assignment or sublicense),  fully paid up, royalty-free, irrevocable right to reproduce, prepare derivative works based upon, distribute copies or phonorecords of, perform, and display the Work in print, digital, or other form or media now known or hereafter devised or discovered in connection with the Services including any advertising or marketing thereof.  Nothing herein will constitute any obligation by Publisher to exercise the rights granted in this Agreement.  The above licenses granted by you in and to the Work terminate within a commercially reasonable time after you remove or delete your Work from the Services (the “Term”).  You understand and agree, however, that Publisher: (a) may retain the Work, after the Term, for archival purposes; and (b) will have no obligation to remove Work that has been printed or distributed during the Term pursuant to this Agreement aside from removing the Work from the Services. 

4. Content Made Available Through Publisher Tools.  Publisher’s website may offer you tool(s) to help you create and conceptualize Works  (“Publisher Tools”) online.  To the extent  your work incorporates any clip art made available via the Publisher Tools, you may only display, view, and use your Work on the Publisher’s website.  Any downloading or distribution of clip art (whether or not incorporated in a Work) made available through the Publisher Tools is strictly prohibited.

5. Right of First Refusal.  In addition to the license of rights granted in Section 3 above, you hereby grant to Publisher the option and right of first refusal with regard to the commercial exploitation of the Work.  Accordingly, during the Term or within ninety (90) days after the Term, Publisher will have a right of first refusal to purchase or license the Work on the conditions set forth in this Section.  Before accepting or providing an offer to sell or license the Work, you will deliver to Publisher a written notice (“Notice”) stating: (a) your bona fide intention of licensing, selling, or otherwise exploiting the Work; (b) the bona fide price or other consideration for which you propose to sell, license, or otherwise exploit the work; (c) the material terms and conditions of the proposed agreement (“Offer Terms”).  After the receipt of the Notice, Publisher may, by providing notice to you within sixty (60) days after receipt of Notice, elect to purchase, license, or otherwise exploit the Work on terms substantially similar in all material respects to the Offer Terms. 

6. Copyright.  As between Publisher and you, you will retain the copyright in the Work.  If you provide the year of publication and the name of the owner of the copyright in the Work, Publisher will try to include a copyright notice.  Publisher is not responsible for any errors in the copyright notice.  Publisher reserves the right to register the copyright in the Work in your name, and may effect any renewals or extensions of copyright provided for by law.  You will cooperate with Publisher in furnishing information and executing documents that may be required in connection with registration of copyright.  If copyright in the Work is infringed, Publisher shall have the right to bring an action for infringement.  You agree that Publisher may name you as a party to such action, and you agree to provide such assistance relating to the action as Publisher may request.  Publisher shall be entitled to retain all proceeds of any action that it decides to bring.

7. Warranties & Indemnification.
a. You warrant that you are the sole author and/or proprietor of the Work, with full power and authority to make this Agreement; that all rights conveyed to the Publisher hereunder are free of encumbrances; that the Work does not violate any copyright, any right of privacy, or any other right of any third person, and contains nothing libelous or otherwise unlawful; and that any instructions, directions, formulas, and recipes provided in the Work are accurate and will not be harmful to the user.  You agree to make any changes requested by Publisher to lessen or eliminate the possibility of third-party lawsuits.
b. You warrant that the Work does not contain the name, voice, signature, photographs, and/or likeness of recognizable children under the age of 18 (unless you are the parent or legal guardian of the children, in which case you are hereby granting permission to Publisher to utilize such materials for any purpose relating to the Work, Publisher, or the Services, including but not limited to advertising).

c. You will, at your own expense, defend, indemnify, and hold harmless Publisher and its affiliated and related entities, licensees, successors and assigns, employees, officers and directors, representatives, contractors and agents from all claims, losses, damages and expenses of any kind (including, without limitation, reasonable attorneys’ fees as well as disbursements and amounts paid in settlement) arising out of or in connection with a breach or alleged breach by you of your obligations or warranties under this Agreement.  You will promptly notify Publisher in the event of any claim, demand, or suit.

d. The warranties and indemnities in this Agreement shall survive any termination of this Agreement.

EXCEPT FOR THE SPECIFIC REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

ALL GOODS AND SERVICES PROVIDED BY PUBLISHER ARE PROVIDED “AS IS,” “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS,” AND WITHOUT ANY WARRANTY OF ANY KIND.  PUBLISHER HEREBY DISCLAIMS, AND YOU HEREBY WAIVE AND RELEASE, ALL RIGHTS AND REMEDIES YOU MAY HAVE, AND ALL WARRANTIES, OBLIGATIONS, OR LIABILITIES OF PUBLISHER OR ITS AFFILIATES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO MATTERS RELATING TO OR ARISING FROM THIS AGREEMENT, INCLUDING THOSE RELATING TO: (1) any goods or services that PUBLISHER provides AS A RESULT OF OR RELATING TO THIS AGREEMENT; (2) THE AVAILABILITY, ACCESSIBILITY, TIMELINESS, OR SECURITY OF THE SERVICES, OR WHETHER THEY WILL BE PERFORMED OR OPERATE WITHOUT ERROR; AND (3) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY, OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF PUBLISHER OR ITS AFFILIATES (WHETHER ACTIVE, PASSIVE OR IMPUTED).  BY WAY OF CLARIFICATION AND NOT OF LIMITATION, YOU ACKNOWLEDGE AND AGREE THAT PUBLISHER DOES NOT WARRANT THAT ANY MATERIALS YOU UPLOAD OR INPUT INTO PUBLISHER’S WEBSITE, OR OTHERWISE SUBMIT TO PUBLISHER, WILL NOT BE LOST, CORRUPTED, OR OTHERWISE DESTROYED, AND YOU AGREE THAT PUBLISHER IS NOT OBLIGATED TO CREATE BACK UP COPIES OF SUCH MATERIALS.  YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NO EXPECTATION AND HAVE RECEIVED NO ASSURANCES, AND THAT PUBLISHER HAS MADE NO REPRESENTATION OR WARRANTY, THAT ANY INVESTMENT BY YOU OR ITS AFFILIATES WILL BE RECOVERED OR RECOUPED, OR THAT YOU OR ANY OTHER PARTY WILL OBTAIN ANY ANTICIPATED AMOUNT OF PROFITS OR OTHER AMOUNTS BY VIRTUE OF THIS AGREEMENT.  SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS WITH RESPECT TO WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY, SO CERTAIN SUCH LIMITATIONS IN THIS AGREEMENT MAY NOT APPLY TO THE EXTENT SO NOT ALLOWED.

8. Releases and Licenses.  You have obtained, and will provide copies to Publisher at Publisher’s request, written permission for use of all photos submitted for inclusion in the Work; for any items (graphic and textual) from other published and unpublished works incorporated into the Work; and for the use of the name, voice, signature, photographs, and/or likeness of recognizable individuals.  All written permissions will specifically grant the perpetual, irrevocable, royalty-free, worldwide, non-exclusive right to use such materials throughout the world.

9. Promotion.  Publisher will advertise or otherwise promote the Work as it deems appropriate, at its own expense, and in its sole discretion.  Said promotion may include, but is not limited to distributing links to and thumbnail images of the cover of the Work.  Publisher may also publish, or permit others to publish without compensation or royalty, such selections from the Work as it may deem proper to the promotion of the Work.  Publisher may use and authorize use of the your name, likeness, and photograph in connection with advertising, publicizing, licensing, and promoting the Work and, if requested by Publisher, you will supply Publisher with two copies of a photograph of you, as a black–and-white print minimum size 4" x 5," together with such additional written permission as may be necessary to permit use of the photograph in the manner recited.

10. Miscellaneous.  This Agreement constitutes the whole agreement between you and Publisher relating to the subjects addressed herein, and may not be modified except in writing signed by both parties; there are no oral terms.  A waiver of any breach of this Agreement or any one of its terms by either party thereto shall not be deemed a waiver of any repetition of such a breach, nor shall it affect the other terms; no waiver shall be valid unless set forth in writing and signed by the party making the waiver.  This Agreement shall be construed in accordance with the laws of the State of Virginia, without reference to its principles of conflict of laws.  Any action arising out of or in connection with this Agreement will be brought only in the state or federal courts located in Fairfax County, Virginia.  You hereby waive any defense of lack of personal jurisdiction or forum non conveniens.  This Agreement shall be binding upon the parties’ heirs, successors, agents, administrators, and assignees.  All notices, statements, and payments due to either party under this agreement shall be deemed properly delivered upon either personal delivery or delivery by first class mail addressed to the last-known post office address of either party.  The parties to this agreement are independent contractors.  Neither party is the agent, representative or partner of the other party, and neither has any right, power, or authority to enter into any agreement or other commitment for, or incur any liability or obligation on behalf of, or otherwise bind, the other party.  THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER WRITTEN OR ORAL), OR ACTIONS OF THE PARTIES.

11. LIMITATION OF LIABILITY.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF THE OTHER PARTY OR FOR ANY LOST OR IMPUTED PROFITS OR ROYALTIES, OR FOR ANY BUSINESS INTERRUPTION, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT PRODUCT LIABILITY), EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.  THIS IMMEDIATELY PRECEDING SENTENCE SHALL NOT RESTRICT A PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF, NOR SHALL IT LIMIT YOUR OBLIGATION TO INDEMNIFY PUBLISHER.
IN NO EVENT WILL PUBLISHER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY), WARRANTY OR OTHERWISE, EXCEED THE AMOUNT OF THE FEE ACTUALLY RECEIVED BY PUBLISHER FROM YOU.