DYMOCKS PUBLISHING PTY LTD

DYMOCKS' BOOK PRINTING, ISBN & EDITING SERVICES

Terms of Service

 

1.1      Dymocks Publishing Pty Ltd ("Dymocks", "we" or "us") provides software and personal publishing services online through the website www.dpublishing.com ("Website"), that enable Dymocks customers who are published authors, authors looking to publish, hobby writers or otherwise ("customer", "you" or "your") to create, design, layout and compile quality books using your own content (each, a "Book") through Dymocks' Book Publishing Service ("Book Publishing Service"). A variety of add ons and inclusions are available for purchase as part of the Book Publishing Service, including output of the book into accepted eBook formats, cover design, physical printing of the Book, and editing services (collectively, "Services").

1.2      These Terms of Service ("Terms of Service" or "Agreement") contain general terms that apply to all users of the Services. When using the Website, you are also subject to Dymocks' general Website Terms of Service applicable to all users of the Website ("User Terms of Service"). In the event of any inconsistency between this Agreement and the User Terms of Service, the terms of this Agreement are to prevail.

2.1      In order to use the Services, you must agree to these Terms of Service. You may not use the Service if you do not accept these Terms of Service.

2.2      You can accept these Terms of Service by:

(1)       Clicking to accept or agree to the Terms of Service, where this option is made available to you by Dymocks in the user interface for the Book Publishing Service; or

(2)       By actually using the Services. In this case, you understand and agree that Dymocks will treat your use of the Services as acceptance of the Terms of Service from that point onwards.

2.3      You represent that you are fully able to enter into the terms, conditions, obligations, representations and warranties set out in these Terms of Service. If you are using the Services as a representative of a company or legal entity:

(1)       you represent that you have the authority to enter into this Agreement on behalf of that company or entity; and

(2)       you agree that the terms "you" and "your" in this Agreement also refer to your company or legal entity.

2.4      You should print off or save a local copy of these Terms of Service for your records prior to using the Services.

3.1      You represent and warrant that you own or have permission to use all of the content and any other information uploaded by You to the Book Publishing Service including text, files, design templates, images, photos and any other material submitted to the Book Publishing Service ("Your Content"). Unless expressly agreed in a separate publishing agreement, Dymocks has no ownership of any of Your Content.

3.2      After submitting Your Content to Dymocks, you continue to retain any ownership rights you have in Your Content and you continue to have the right to use and license Your Content in any way you choose. Your Content as uploaded to the Book Publishing Service or any of the Services must comply with these Terms of Service.

4.1      Dymocks retains the right at any time to refuse to provide the Book Publishing Services to any person. Dymocks’ decision to provide or refuse the service is at its absolute discretion and Dymocks does not have to provide reasons for its determination.

4.2      You warrant that Your Content is not illegal and does not otherwise constitute a violation of the criminal laws of your jurisdiction and Your Content:

(1)       Is not defamatory of any individual or organisation;

(2)       Is not offensive and does not promote racism, bigotry or harm of any kind against any group or individual;

(3)       Is not false or misleading and does not promote, endorse or further illegal activities or conduct that is abusive, threatening or obscene; and

(4)       Does not infringe the intellectual property rights, including copyright (including moral rights), trade marks, patents, trade secrets and confidential information of any person

(collectively, "Prohibited Content").

5.1      When using the Book Publishing Service, you grant to Dymocks a non-exclusive right to reproduce Your Content for the sole purpose of completing your Book order. By uploading Your Content to the Book Publishing Service, you allow Dymocks to store, cache and transfer and otherwise reproduce any and all copies of Your Content as necessary in order to process and complete your Book order. You also allow Dymocks to provide copies of Your Content to any of its book printing partners at Dymocks' sole discretion to process your Book order as necessary.

5.2      To avoid any doubt, you acknowledge that Dymocks does not acquire ownership of any copyright in Your Content under this Agreement.

5.3      You also acknowledge that you are solely responsible for Your Content and responsible for ensuring you have the rights in Your Content to grant to Dymocks the right to reproduce it using the Book Publishing Service in accordance with Clause 4.1

5.4      Dymocks will not review Your Content or any part of it at any stage when processing your Book order.

5.5      Upon completion of your order, Dymocks may retain a copy of Your Content for record keeping purposes only for a period of up to seven years.

6.1      Dymocks is not involved in or responsible for the development of content for any Book made using the Book Publishing Service, or for any decisions made by you relating to the design or layout of the content for any Book created through the Book Publishing Service.

6.2      Dymocks does not proof or edit Your Content in any way (unless these add ons are specifically selected in the ordering process in which case you are responsible for authorising such changes). The Book Publishing Service primarily assists You in the layout of Your Content however it is entirely your responsibility to review Your Content and Book layout before your order is finalised, and rectify any:

(1)       Typographical errors, grammatical errors, unfinished text, or other text errors;

(2)       Poor quality images that may appear blurry in print;

(3)       Design issues, including book format, organisation, style, colour, and page layout; and

(4)       Any other creative choices you made using the Book Publishing Service before proceeding with your Book order.

6.3      You agree to review your Book before finalising your order. We recommend printing a hard copy of your Book on your local printer for reviewing it before you process your order.

7.1      You may, as an added service, request that Dymocks or one of Dymocks' editors (Editor) provide editing services for your Book.

7.2      Additional terms of service may apply to the editing of your Book by Dymocks or an Editor and you must accept those terms prior to your Book being edited.

7.3      You acknowledge and agree that where editing services are provided by an Editor:

(1)       the contract for the provision of editing services is between You and the Editor, Dymocks is not a party to that contract; and

(2)       Dymocks takes no responsibility for any acts or omissions of the Editor; and

(3)       You release Dymocks from and against any claims you might have in relation to or arising from your contract with the Editor.

7.4      You are responsible for submitting your manuscript in its final format ready to be edited by one of Dymocks' professional editors in accordance with the requirements and parameters set out on the Website in the Dymocks Editing Service section.

7.5      The editing services available through the Book Publishing Services generally involves the following stages:

(1)       Pre-edit Review: where Dymocks refers your Book to an experienced editor who reviews Your Book to assess the nature of the editing services required and the likely cost of such services (Quote); and

(2)       Editing Service: occurs after you accept a Quote. This stage involves the editing of Your Book in accordance with the scope of service identified in a Review.

7.6      In consideration of Dymocks providing a referral to an appropriate editor and quote for the editorial work, at the time your manuscript is submitted to Dymocks via the Dymocks Editing Services, you will be charged, and you agree to pay, a non-refundable referral fee in the amount specified on the Website in the Dymocks Editing Service section.

7.7      Dymocks will appoint at its sole discretion the editor it deems most suitable to edit your manuscript from its list of editors available to undertake the editorial work at the time your manuscript is submitted to Dymocks.

7.8      Where your manuscript requires an editor with a particular skill set or qualification, Dymocks will outsource the editing work to an editor not on Dymocks list of regular editors.

7.9      Where Dymocks does not have a suitable editor on its list available to undertake the editing work for your manuscript, and is unable to find an appropriate editor in accordance with Clause 8.12 above, Dymocks reserves the right to refuse to allocate an editor to you without explanation to you.

7.10    Upon receipt of confirmation from you by Dymocks that you accept the Quote and payment of the Quote, the relevant Editor will commence work on editing your manuscript. Quotes are valid only for 5 business days after issue and You must accept a Quote within that period in order for the Quote to remain valid and capable of acceptance. A Quote lapses 5 business days after its issue.

7.11    You do not have to agree with the suggestions made by the Editor.

7.12    Any changes requested by you after the edit is complete and your edited manuscript returned to you will require the purchase of a new editing service. You will be subject to additional charges for this new work in addition to the scope of work identified in the original quote provided.

7.13    You acknowledge and agree that Dymocks procures the performance of the Dymocks Editing Service by independent third party contractors and acts as an intermediary for you in arranging this service. Dymocks assumes no liability for, and you release Dymocks for all liability in respect of, the quality and nature of the editing services provided and any claims relating to the provision of the editing services.

8.1      You may, as an added service, request that Dymocks or one of Dymocks' design partners (Designer) provide design services for your Book including cover design, image optimisation and layout advice.

8.2      Additional terms of service may apply to the provision of design services for your Book by Dymocks or a Designer and you must accept those terms prior to the services being provided.

8.3      You acknowledge and agree that Dymocks procures the performance of the design services by independent third party contractors and acts as an intermediary for you in arranging this service. Dymocks assumes no liability for, and you release Dymocks for all liability in respect of, the quality and nature of the design services provided and any claims relating to the provision of the design services.

9.1      Any Book ordered through the Book Publishing Service may, at your request and as an added service, be printed by Dymocks .

9.2      Additional terms of service may apply to the printing of your Book and you must accept those terms prior to the Book being printed.

9.3      Where you have entered into a Publishing Agreement with Dymocks in relation to your Book and you request a copy of your Book to be printed the amount payable by you for the Book will be the per unit cost of production plus the Publisher Fee. You should review the Publishing Agreement and Rate Card to determine this amount.

10.1    You may, as an added service, request that Dymocks have your Book reviewed by a select group (Review Group) of Dymocks’ Booklover Members (Booklover Review Service).

10.2    Availability of the Booklover Review Service is at Dymocks’ absolute discretion. Dymocks’ decision to provide or refuse to provide the Booklover Review Service is at its absolute discretion and Dymocks does not have to provide reasons for its determination.

10.3    Additional terms of service may apply to the provision of the Booklover Review Service by Dymocks and you must accept those terms prior to the Booklover Review Service being provided.

10.4    The Review Group is carefully selected by Dymocks to include persons who have expressed an interest in participating in the Booklover Review Service.

10.5    Dymocks incentivises members of the Review Group to provide timely and constructive reviews and comments on manuscripts by such means as it determines at its discretion. Such incentives may include provision of bonus Booklover points which can be redeemed for discounts off products in Dymocks stores.

10.6    It is a fundamental condition of Dymocks providing the Booklover Review Service that You acknowledge and agree that:

(1)       Dymocks cannot guarantee that all or any of the Booklover members in the Review Group will review your Book; and

(2)       Dymocks cannot guarantee that all or any of the Booklover members in the Review Group will provide comments or feedback on your Book; and

(3)       the provision of favourable feedback from the Review Group does not guarantee that Your Book will be well received or accepted by any other individual or group including critics; and

(4)       the provision of favourable feedback from the Review Group does not have an impact on Your publishing or distribution status with Dymocks, should you choose to publish with Dymocks.

10.7    You acknowledge and agree that Dymocks procures the performance of the review of your Book by Booklovers who are independent third parties contractors and acts as an intermediary for you in arranging this service. Dymocks assumes no liability for, and you release Dymocks for all liability in respect of, the quality and nature of the review services provided by Booklover members and any claims relating to the provision of the Booklover Review Services.

11.1    Provision of the Services by Dymocks

(1)       Dymocks is constantly innovating the Services to provide the best possible experience and product for its Users. You acknowledge and agree that the form and nature of the Services which Dymocks provides may change from time to time without prior notice to you.

(2)       As part of Dymocks' continuing innovation of the Services, you acknowledge and agree that Dymocks may stop (permanently or temporarily) providing the Website or Services (or any features within the Website or the Services) to Users at Dymocks' sole discretion, without prior notice to you.

11.2    Third Party Software

(1)       In order to use the Services, you may be required to download software or content of a third party, and agree to additional terms and conditions related to this third party software (as necessary) to process your order.

(2)       Unless otherwise provided by the terms and conditions applicable to the software relating to the Services, you are required to use to process any order through the Services, those additional terms are incorporated into these Terms of Service.

11.3    Dymocks' Trade Marks

Dymocks' trade marks, logos, images, service marks, trade names and other distinctive branding features used on the Website, in store and in Dymocks advertising may not be used without permission. In providing the Services, Dymocks is not granting you a licence of any intellectual property or the right to use or deal with Dymocks' intellectual property.

12.1    You acknowledge that Dymocks reserves the right to charge for the Services and to change the fees for the Services and any of them from time to time in its absolute discretion, upon posting to the Website any changes to the charges attached to the Services.

12.2    When using the Services, you agree to pay all fees and charges incurred in connection with your orders and purchases (including any taxes imposed on your orders and purchases, including, but not limited to, GST) at the rates in effect when the charges were incurred.

12.3    Where Dymocks, acting reasonably, determines that taxes, duties, levies or other government charge or impost (collectively ‘Taxes’) are payable in respect of the provision of the Services to you, it may require payment of the amount of the Taxes in addition to payment of the cost of the Services. You must pay the Taxes at the time that you are required to pay for the Services.

12.4    Any fees charged to your account are generally non-refundable, subject to the terms of Dymocks' Refund and Billing policy as referred to in this Agreement and the operation of the Australian Consumer Law.

12.5    When you order Books or other products through the Services for overseas delivery, you may be subject to import duties and taxes which are levied when the package with the Books or products arrives at the destination specified. Any charges for customs clearance will be borne by you, as Dymocks has no control over such charges and cannot foresee the amount charged (if any). Since customs policies vary from country to country, you should contact the customs office in the country where you have asked Dymocks to ship your Books or other products to obtain further information. Please be also aware that you are considered the importer of record and must comply with all laws and regulations of such country.

13.1    Your receipt of an electronic or other form of order confirmation does not signify Dymocks' acceptance of your order, nor does it constitute confirmation of our offer to sell. Dymocks reserves the right at any time after receipt of your order to accept or decline your order for any reason.

13.2    Dymocks further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Dymocks may require additional verifications or information before accepting any order.

14.1    To process an order using the Book Publishing Service, you will be required to provide to Dymocks a valid credit card number and associated payment information at the time of order.

14.2    The information you will be required to provide to process your Book order is stipulated on the Website, and includes:

(1)       Your name as it appears on the card;

(2)       The credit card type;

(3)       The date of expiration of your credit card;

(4)       Billing address; and

(5)       Any activation numbers or verification codes needed to charge your card.

14.3    Dymocks currently does not accept cash, cheque or any other payment form. Your credit card issuer agreement governs your use of your designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. You agree that no additional notice or consent is required before Dymocks invoices the credit card for all amounts due and payable. By providing Dymocks with your credit card number and associated payment information, you agree that Dymocks is authorised to immediately invoice your account for all fees and charges due and payable to Dymocks as a result of your purchase of any Books or other products. Dymocks reserves the right, to change its prices and billing methods for on the Book Publishing Service and for other products sold, either immediately upon posting on the Website, or by e-mail delivery to you.

15.1    You agree to submit any disputes regarding any charge to your account in writing to Dymocks within fourteen (14) days of the disputed charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge.

15.2    Refunds (if any) made pursuant to such dispute, are at the discretion of Dymocks and subject to the terms of this Agreement and the Australian Consumer Law.

15.3    Billing disputes should be notified to the address nominated in the Contact Us section of the Website.

16.1    In the case of defects or faults in the Services provided, Dymocks may elect (at its discretion) to:

(1)       refund any fees paid by you; or

(2)       provide the Service again.

16.2    You must report any defects in the Services provided to you within 14 days of receipt of the Services. If you do not report defects in the Services within the period referred to in the preceding sentence the Services are deemed to be provided without error, defect or omission.

17.1    To the maximum extent permitted by law, your use of the Services and purchase of any products through the Services are at your sole responsibility and risk. To the maximum extent permitted by the law, the Services and the products offered through the Services (including third party content) are provided on an "as is" and "as available", basis, and Dymocks and its successors, affiliates, contractors, employees, suppliers, licensors, partners and agents disclaim all other warranties.

17.2    Clauses 15.1 and 18 do not exclude any guarantees that you may have at law under the Australian Consumer Law. To the maximum extent permitted by law, Dymocks and its suppliers disclaim all additional representations or warranties, whether express or implied made by Dymocks outside of this agreement.

17.3    The Services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

18.1    You agree that, to the maximum extent permitted by law, including, but not limited to negligence, Dymocks, or its successors, affiliates, contractors, employees, suppliers, licensors, partners or agents, shall not be liable to you for any indirect, incidental, special, consequential, or exemplary damages, including, but not limited to, damages for loss of profits, cost of cover, goodwill, use, data, or other intangible losses (even if Dymocks has been advised of the possibility of such damages), arising from or relating to this agreement or your use or the inability to use the Services;

18.2    Dymocks' liability to you for any damages arising from or related to any cause of action whatsoever, regardless of the form of the action, shall be limited to either (at the election of Dymocks):

(1)       the amounts paid to Dymocks for products purchased using the Services; or

(2)       Dymocks providing the Service to you again.

To the maximum extent permitted by law, you agree to indemnify, defend, and hold harmless Dymocks, and its successors, subsidiaries, affiliates, co-branders, contractors, employees, third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable solicitor's fees) whatsoever arising out of or relating to:

(1)       Your Content;

(2)       Your use or misuse of the Services;

(3)       Your breach or alleged breach of any provision of this Agreement; and

(4)       Your violation of any rights (including intellectual property rights) of a third party.

20.1    You represent and warrant that Your Content is free from computer viruses or any other defect or error which may affect Dymocks software or systems. You should scan Your Content with appropriate virus protection and security software prior to uploading it to the Dymocks Publishing Service.

20.2    We do not represent or warrant that the Website and any other information or material contained in, downloaded or accessible from the Website to enable you to use the Services is free from computer viruses or any other defect or error which may affect your software or systems. You should protect your software and systems by installing and implementing your own security and system checks.

20.3    Any material downloaded or otherwise obtained through your use of the Services is done at your own discretion and risk and you will be solely responsible for any damage to your computer or other device or loss of data that results from the download of any such material.

21.1    Dymocks may modify this Agreement at its discretion and such modification shall be effective if it is reasonable and necessary to effect these Terms of Service and the Services generally.

21.2    Dymocks will publish any modified terms as soon as possible and these modified terms will apply from the time of posting to the Website.

21.3    If you do not agree to any modification, you must cease your use of the Book Publishing Service.

22.1    This Agreement shall remain in full force and effect during your use of the Services. You may discontinue your use of the Services at any time, for any reason. You do not need to specifically inform Dymocks when you stop using the Services.

22.2    If, in our reasonable opinion, you breach any of these Terms of Service, we may suspend, terminate or limit your access to the Website and the Services. If we do not act in relation to a breach by you of these Terms of Service, this does not waive our right to act with respect to subsequent or similar breaches.

23.1    You agree that Dymocks may provide you with notices by email, regular mail, or postings in relation to the Services.

23.2    You agree that if Dymocks does not exercise or enforce any legal right or remedy which is contained in these Terms of Service (or which Dymocks has the benefit of under any applicable law), this will not be taken to be a formal waiver of Dymocks' rights and that those rights or remedies will still be available to Dymocks.

23.3    If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms of Service is invalid, then that provision will be removed from these Terms of Service without affecting the remaining provisions of the Terms of Service, which will continue to be valid and enforceable.

23.4    This Agreement, which incorporates the Privacy Policy and the Dymocks Payment Policies constitutes the entire agreement between you and Dymocks and governs your use of the Services, superseding any prior agreements (whether written or oral) between you and Dymocks regarding the subject matter of this Agreement. Neither party is relying upon or will rely upon any warranties, representations, assurances or inducements not expressly set out in this Agreement.

23.5    This Agreement shall be governed by and are to be construed according to the laws of the State of New South Wales, Australia and we submit to the exclusive jurisdiction of the Courts of New South Wales and the Federal Court of Australia.

23.6    This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that Dymocks has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.