By purchasing any service from Hillcrest, Customer acknowledges that these General Terms and Conditions (“General Terms” ) are incorporated into the terms of any particular service or services that Customer has and/or may purchase from Hillcrest.
Customer recognizes that Hillcrest will, in good faith, perform all services for which the Customer paid to the best of its ability and level of expertise. Customer also recognizes that Hillcrest offers services as defined in the terms of each service and that Customer ultimately makes all decisions pertaining to whether Customer wants all or part of the service executed. Customer is not entitled to refunds for parts of particular service that Customer elects not to receive, unless Hillcrest is unable or unwilling to perform them and/or a refund schedule is specifically detailed in the terms of any particular service.
Hillcrest's offer of all of its services that incorporate these General Terms and Customer's acceptance of said terms of any service by paying for said service(s) creates a legally binding contract.
B. Copyright’s To Materials Created
Customer shall also own all right, title and interest in and to all materials and work, written, created, and/or produced for Customer by Hillcrest, including, but not limited to, original production files, press releases, pitch letters, website copy, sell sheets, and the results and proceeds thereof (collectively “Materials”), it being understood that Customer shall only receive files from Hillcrest upon termination or expiration of this Agreement as specified in the terms for any specific service. However, Customer shall not own any of the the software, programs, databases, or other intellectual property used to create any products or services pursuant to this Agreement (e.g. Customer owns the sell sheet created for by Hillcrest, but not the software, programs, databases and other intellectual property used to create the sell sheet).
With regard to any website created for Customer pursuant to the Agreement, Customer shall own any code specifically created by Hillcrest for Customer’s; provided, however, Customer shall not own any theme or code used to create a site in Wordpress or any other website creation tool.
1. By Customer
Unless specifically set forth in the terms of service for any specific service, Customer may terminate Customer’s relationship with Hillcrest at any time and for any reason by providing written notice via Hillcrest’s Author Center. If Customer terminates prior to the commencement of a service (as defined by within the terms for each service), Customer shall receive a full refund of all monies paid.
If Customer terminates after commencement of a service, Customer will receive a refund, if applicable, as set forth in the terms for that particular service. Any applicable refunds will be made by Hillcrest within thirty (30) business days after the notice of termination has been provided by Customer. Hillcrest has ten (10) business days to make all files available to Customer via download or via disk, at Hillcrest’s discretion.
2. By Hillcrest
Hillcrest may stop providing Customer any service and/or refuse to provide any service for any reason. Should Hillcrest decide not to provide any service prior to commencement of work, Customer will receive a full refund of any monies paid. Should Hillcrest cease providing a particular service after commencement of work on that service, Customer may be offered a partial refund for portions of the service not yet executed, as detailed in the particular terms for each service. Further, each service has its own definition of what constitutes “commencement of work.”
If Hillcrest is willing and able to provide any service as set forth in the terms of said service and/or if Hillcrest is unable to provide said service due to Customer’s refusal to provide needed materials, information, or cooperation, then Customer shall not be entitled to any refund.
If Customer terminates any service, unless provided for within each particular service's terms and conditions, there are no refunds
The most Customer may ever make a claim for is the amount paid for any services rendered hereunder, less the any amounts already earned by Hillcrest for work on that service. Hillcrest is not liable for any damages including but not limited to any incidental or consequential damages, damages for loss of profits, business interruption, loss of business information, or any other type of pecuniary loss.
All services come as is without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
1. For Services Provided by Hillcrest
All controversies, claims, disputes and matters in question (including, but not limited to, contract, equity, tort, fraud and statutory claims, arising out of, or relating to, the Agreement (except Customer’s breach of any representations and warranties that subject Hillcrest to claims by any third-party), shall first be subject to voluntary mediation for a period of thirty (30) days, and in the event that such controversy claims, dispute or matter in question is not resolved, then it shall be decided by arbitration in accordance with the provisions of this paragraph. The arbitration proceedings shall be conducted in Minneapolis, Minnesota before JAMS, Alternative Resolution Centers (ARC) or some other mutually agreed upon arbitrator residing in Minnesota. Either party may appear in person or by phone. The arbitration panel will consist of one arbitrator chosen by the Parties. If the Parties cannot agree upon an arbitrator, they shall submit to the procedure utilized by JAMS or ARC, or the American Bar Association, as the Parties select, to choose an arbitrator. The decision of the arbitrator, including determination of amount of any damages suffered, shall be conclusive, final, and binding on the Parties, their respective heirs, legal representatives, successors, and assigns. The arbitrator shall be bound to follow Minnesota law, and the Parties will share the initial costs of the arbitration on a fifty/fifty (50/50) basis. Judgment may be entered on the arbitrator's decision in a court of competent jurisdiction located in Minneapolis, Minnesota. The prevailing Party in any such arbitration, as the case may be, shall be entitled to recover from the non-prevailing Party all of said prevailing Party’s arbitration fees and damages, but excluding attorney’s fees. However, attorneys fees are shall be awarded as follows:
Any post-arbitration reasonable costs, distributions, and attorneys’ fees, including all collection costs (e.g., fees paid to a collection agency) and attorneys’ fees incurred in attempting to collect any judgment hereunder shall be owed by the party against whom the judgment was made, entered, and/or adjudicated;.
Any attorneys fees incurred by Hillcrest as a result of a third-party claim against Hillcrest relating to Customer’s Book; and/or
Per subsection E(4).
2. Claims by Third-Parties
If any third-party makes a claim of any kind against Hillcrest for Customer’s alleged or actual breach of any representations, warranties, or intellectual property infringement such issues not be adjudicated via arbitration and will be adjudicated as set forth in the section of any Agreement that covers such claims..
3. Arbitration Remedies
Each Party agrees that its sole remedy shall be an action for monetary damages, if any, through the alternative dispute resolution provisions delineated above, which damages may not include, and neither Party shall be liable for, any incidental or consequential damages for loss of profits, missed sales opportunities, business interruption, loss of business information, or any other type of pecuniary loss; provided, however, that if either Party alleges that other Party may have materially breached any term, covenant, condition, promise or undertaking under this Agreement, then, prior to pursuing any remedy, including, without limitation, termination, said Party shall give the other Party written notice thereof and a good faith opportunity to cure said material breach; provided, however, the parties agree that further work on the Book will cease during the pendency of the arbitration process.
The parties also agree that the arbitrator is bound by the terms and conditions of all agreements that reference these General Terms.
Each party may provide written and other evidence so long as it pertains to the facts and circumstances directly relating to claim(s) at issue.
4. Limitation of Other Proceedings
Except as provided hereinabove, each of the parties agrees that it will not file (nor will it cause any other party or person to file) any suit or otherwise commence any legal action or proceeding in a court asserting a claim which may be submitted to arbitration pursuant to this Agreement. Upon the entry of an order by a court dismissing or staying any such action or proceeding pending arbitration pursuant to this Agreement, the party which filed such action or proceeding shall promptly pay to the other party the attorneys’ fees, costs and expenses incurred in that court proceeding by such other party prior to the entry of such order.
Hillcrest does not make any projections as to the amount of money Customer can or will make from the promotion of Customer's Book by and through any service provided by Hillcrest pursuant to this Agreement. Royalties or other income derived from the sale of Customer's Book is based solely on the Customer, the Customer's marketing efforts and many other factors which make it impossible for Hillcrest to predict or even guesstimate how much the Customer can earn.
Customer may not assign any of its rights under this Agreement without the prior written consent of Hillcrest, which will not be unreasonably withheld. Nor may Customer delegate any of its obligations under this Agreement without the prior written consent of the Hillcrest and, in any event, no delegation shall relieve Customer of any of its obligations under this Agreement.
Hillcrest may, without the consent of the Customer, assign any of its rights or delegate any of its duties under this Agreement without any prior consent; provided that, any person or entity to whom any right, title, obligation or interest in this Agreement shall be assigned or delegated shall be subject to and bound by all of the terms and conditions herein as if they were the original party hereto.
This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one (1) and the same instrument. Further, one or both parties may execute this Agreement via electronic signature (by accepting terms via Hillcrest’s website sign up process) or fax and such signature (whether typed or written) will be deemed to be original. Payment for the services set forth in this Agreement via credit card online or via fax signature constitute Customer’s acceptance to the terms set forth herein.
All dollar amounts set forth in this Agreement and in those incorporated as part of this Agreement are in U.S. Dollars.
Customer represents and warrants to Hillcrest that Customer:
Has not assigned, pledged, or otherwise encumbered the rights to the book being printed, published and/or distributed by Hillcrest;
Has has full power to enter into this Agreement;
Is the copyright holder, the attorney-in-fact for the copyright holder, and/or otherwise has the legal authority to authorize the printing, publishing and/or distribution of the book on behalf of the copyright holder;
The Book and all rights therein are free of liens, claims, or interests of any kind;
The book being printed, published, and/or distributed is entirely original except for portions thereof which are in the public domain or for which legally effective written licenses or permissions have been secured;
The the book being printed, published and/or distributed does not violate or infringe upon any personal or proprietary rights including without limitation privacy rights, contract rights, or publicity rights of any other persons or entities;
The the book being printed, published, and/or distributed is not libelous;
The the book being printed, published and/or distributed does not infringe upon any statutory or common law copyright; and
All public domain material used in the book being distributed is actually in the public domain, to best of Customer’s knowledge.
If any claim, action, or proceeding based upon an alleged violation of any of these warranties is made against Customer or Hillcrest by anyone, both parties will have the right to defend the same through counsel of their own choosing. Customer can not effect a settlement with the third-party making the claim without the prior written consent of Hillcrest, which consent will not unreasonably be withheld. If Hillcrest is subject to a claim, action or proceeding of any kind as a result of Customer’s breach of any of these warranties, Hillcrest may settle with the third party claimant, without consent of the Customer so long as such a settlement doesn’t bind the Customer to the terms of the such settlement agreement.
Further, Customer will indemnify and hold harmless Hillcrest against any damages that result due to Customer‘s violation of any warranties. This means that Customer will indemnify Hillcrest against the entire expense (including reasonable costs, disbursements, and reasonable attorney’s fees) attributable to Hillcrest’s defense or settlement of any claim, action, or proceeding based upon an alleged violation of any of these warranties, including any fees, damages or settlements that Hillcrest is required to pay to anyone due to Customer‘s breach of any warranty.
If any such claim, action, or proceeding is instituted, Hillcrest will promptly notify Customer, who will fully cooperate in the defense thereof (so long as cooperation does not jeopardize any of the Customer’s constitutional rights), and Hillcrest may withhold payments of reasonable amounts due Customer for monies earned through book sales or monies owed to Customer for any other reason.
Further, should any third-party allege any breach of these warranties, Hillcrest shall have the right to cease the distribution of the Book until such alleged breach is resolved in a way that is satisfactory to Hillcrest.
These warranties and indemnities will survive the termination of this Agreement.