TERMS OF SERVICE
Updated April 10, 2017
|A few notes on key points in the Smashwords TERMS OF SERVICE
IMPORTANT: These notes do not in any way override the official TERMS OF SERVICE. These notes are intended only as a guide to the original.
Most recent update, April 10, 2017 – Section 1 has been reorganized with the addition of subsections 1a and 1b to delineate the key differences between retail distribution and library distribution. The retailer section, 1a, adds helpful information on how to confirm if a given sales channel is authorized by Smashwords. The library distribution section, 1b, explains current licensing models and the process Smashwords will utilize if we decide to support new library ebook licensing models in the future. Section 1b also adds information previously listed in the Smashwords Channel Manager about how Smashwords allows libraries to manage their purchased ebooks with whichever trusted library ebook checkout platform they prefer as long as our author licensing terms (one ebook, one checkout at time) are maintained.
|Smashwords will let you know whenever they change these Terms of Service.|
|PLEASE READ THE FOLLOWING CAREFULLY. THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME (“Terms”), ARE A BINDING AGREEMENT (“Agreement”) BETWEEN YOU (“End Users”, “Authors”, “Author Agents”, and “Publishers” as defined below) AND SMASHWORDS, INC. (“Smashwords”).
By using the service available at www.smashwords.com and affiliated domains (the “Site”), You agree to the terms governing the applications, features and functionality available on or through the Site (The “Service”). If you do not agree with the terms contained in this Terms of Service, do not use the service.
|You have to agree to these terms. If you do not, you will not be able to use Smashwords, or publish through WPR.
If you are under 18 years of age, you will need to have a guardian agree to any contractual agreements or terms and conditions and they will need to use Smashwords on your behalf.
|About Smashwords – Smashwords operates a self-serve ebook publishing and distribution platform. We make it fast, free and easy for authors, publishers and agents to publish and distribute ebooks. Although Smashwords provides authors, publishers and agents tools to publish and distribute ebooks, Smashwords itself is not a publisher, and therefore does not and cannot assume the legal rights, responsibilities or liabilities of a publisher.
|This is about who Smashwords is and what they do and don’t do. Important: they offer a way to sell and distribute ebooks. Smashwords is not a publisher.
You are the publisher and retain the copyright to your work.
|Rights and Obligations of Authors, Publishers and Agents – If you upload (publish) a work to Smashwords, you understand and warrant that you are the legal publisher of this work; you control all rights and assume all liabilities associated with the publication of this work; and you warrant and affirm that no aspect of you work infringes or violates the rights of another person, party or entity. In your role as the author, publisher or agent, you understand you are the publisher of your work, and therefore you or your author are responsible for the writing, editing, formatting and cover design for your book. As the authorized author, publisher or agent, you are responsible for uploading your book to Smashwords, managing your book’s metadata, opting in or out of Smashwords distribution channels, and marketing your book. To the extent Smashwords or its retail distribution partners provide tools or services to assist in or support any of these publishing activities does not change the fact that you are legal publisher of this work and Smashwords is acting in the role of publishing platform, retailer and distributor.
The following describes how users of the Site who review or purchase downloadable digital books (“End Users”) can download material and how they may review or use that work by the person or entity who posted the work (the “Author” or “Publisher”). For the sake of simplicity, this Terms of Service may use the term Author and Publisher interchangeably. The term “Author’s Agent” refers to the Author’s duly authorized representative, who is fully authorized and empowered to act on behalf of the Author in all matters described in this Agreement, and who may be authorized to collect and receive directly the monies otherwise payable to Author (or “Publisher”).
The following also describes the rights and responsibilities of the Author and Smashwords. Any user of this Site who downloads, reads or previews any Work on the Site is referred to as an “End User.”
|The End User is the person who downloads and reads the work.
The Author/Publisher (both terms are used and mean the same thing here) is you, the person who wrote the work and put it on Smashwords platform.
The Author’s Agent is someone you ask to represent you.
This says what you may and may not do.
|1. The Grant and the Territory
The Author hereby grants and assigns to Smashwords the nonexclusive worldwide right to digitally publish, distribute, market and sell (“Publish”), and to license others to do so, the work identified on the front page of your submission (the “Work”). Since the terms of agreement with Smashwords, herein, is non-exclusive, the Author or Publisher is free to Publish, license, market and sell their work elsewhere so long as the Author or Publisher is not violating someone else’s agreement or violating any laws. Distribution channels are disclosed on the Smashwords Distribution Information page, and are generally comprised of retail channels that sell books to readers, and library platforms where books are sold to libraries.
|You give Smashwords the right to distribute, market and sell your eBook around the world.
You may also use anyone else to distribute, market and sell your eBook.
|1a. Retailers: Some retailers run a single online ebook store, and others may power the stores or services of other retailers. For the sake of simplicity, at the Smashwords Distribution Information page, we identify “Primary” retailers as the primary store or distributor with which we signed our contract. If this Primary retailer also supplies or operates secondary storefonts we label those as Secondary sales outlets. For example, Kobo is a primary retailer, but they also power the “Secondary” ebook stores for WHSmith in the UK and FNAC in France among others. By utilizing Smashwords distribution services, your books may benefit automatically from broader distribution if and when our previously disclosed Primary retail partners launch or power new secondary stores. In the spirit of full disclosure and to assist book marketing, Smashwords will update Secondary retailers on the Smashwords Distribution Information page on a best efforts basis (our process for notifying you of new Primary retailers is explained in Section 7 below). Keep in mind that since some of the Primary retailers (Gardners is a good example) may now or in the future power hundreds of smaller Secondary channels, the full list of secondary channels will often be incomplete. If you’re unsure if a given sales channel is authorized to carry your book, or if you’re unsure if said sales channel is supplied by Smashwords, please refer to the Smashwords Distribution Information page. If the sales channel in question is not listed there, contact the Smashwords Support team by clicking the “?” icon at the top of any Smashwords web page and we’ll be happy to confirm if the retailer is authorized. To assist our investigation, provide us a hyperlink to your book at Smashwords and a hyperlink to the book listing at the retailer in question.||Smashwords will distribute your book to online booksellers (retailers). You can find their list of retailers on their website.
If you choose to let someone other than Smashwords also distribute your eBook, you must check that they are not already a Smashwords retailer.
|1b. Libraries: Libraries generally utilize the services of library ebook platforms such as OverDrive to manage the procurement (discovery and purchase) and checkouts of library ebooks. Smashwords supplies several of the leading library ebook platforms, as described on the Smashwords Distribution Information page and elsewhere on the Smashwords site. Once a library purchases a Smashwords ebook, the library owns it for perpetuity just as it owns a purchased print book. Similar to the purchase of print books, libraries typically purchase a single copy of an ebook and then check it out to one patron at a time. If their single copy is already checked out, other patrons must wait until the prior checkout expires before they too can check out the book. If a library wants to allow two simultaneous checkouts, they must purchase at least two copies. These platforms apply Digital Rights Management to the ebooks to manage checkouts and checkout expirations. It’s common for libraries to change from one library ebook platform to another (for example, they may move from OverDrive to Baker & Taylor Axis 360, or may move from some other platform to OverDrive). By utilizing Smashwords’ library ebook distribution services, you agree and consent that Smashwords will allow libraries to move their purchased collections from one trusted library ebook platform to another provided that the original licensing model (one book, one checkout at a time) is maintained. At present, Smashwords only sells library ebooks via the one ebook, one checkout licensing model. If Smashwords begins supporting other common ebook library licensing models (such as payment per checkout, subscription site licensing, metered checkouts or others), Smashwords will provide at least 10 days of advance notification via email prior to adding support for a new licensing model so the author or publisher has the option to opt out.||Smashwords supplies online libraries. Each library agrees with Smashwords that they will buy one copy of the book and then lend it to only one person at a time.
If Smashwords decides to change the way they work with libraries they will let you know and you can choose not to let your eBook be sold to the libraries.
|2. Publication. Smashwords will generally Publish any such submissions which do not violate, or which do not appear to violate the Agreement.
|Smashwords will publish any eBook that does not break the rules of the Agreement.|
|2a. Publication of Work As Is. Generally, Smashwords will Publish Author’s Work as it is delivered to us, and not edit or modify the Work. Certain modifications may occur caused by file or design conversions. Smashwords does not guarantee accurate preservation of the original Work’s formatting. To assist authors with their book formatting, Smashwords has published the free Smashwords Style Guide.||Smashwords will publish your eBook as you submit it and will not make any changes to it. However, they do not guarantee that your eBook’s formatting will not change in the process.|
|2b. Publication at Option of Smashwords. Smashwords may decide not to Publish Author’s work or may decide to discontinue its publication of Author’s work for any reason, and no reason need be provided. Except in the cases of gross violations of this Terms of Service, Smashwords will make every attempt to provide reasonable notice to the Author via email, up to and including providing instructions on how to remedy potential issues that might prevent Smashwords from listing a title.||Smashwords can decide not to publish or to stop publishing your eBook without giving a reason, but they will try to give a reason and give suggestions on how to fix the problem.|
|2c. How to “Unpublish” Works from Smashwords. Smashwords may Publish the Work until Author of the Work decides to unpublish the work (to unpublish, log in to the system, click on “Dashboard” and then click “unpublish”). If author is unable to access the site, the author may notify Smashwords in writing to remove the Work. After that notice, Smashwords will remove the work from Smashwords.com within five business days. If the author’s or publisher’s book has been distributed via the Premium Catalog, the removal from the retail partners’ digital shelves may take several weeks. Smashwords will do its best to assist authors and publishers to have their works removed, and to ensure authors/publishers who terminate their Smashwords accounts receive full payment for sales that may occur after account termination. To ensure your book is properly and quickly removed from the channel, go to your Dashboard and unpublish it. This will cause Smashwords channel partners to receive automatic notification to remove the book. Do not contact Smashwords first and ask to have your account deleted, as this will not remove your book from the channel. After you have unpublished your book, and after you have confirmed all channel partners have removed the book, then you may contact Smashwords if you want your account deleted (and please inform Smashwords you have confirmed the book is no longer in the channel).||You can choose to remove (unpublish) your eBook from Smashwords. The easiest way to do this is to log in, select “Dashboard” and select “Unpublish.” Smashwords will also help you do this and ensure that you receive any money that you are owed up to the time that your eBook is removed.
This section gives details on how to unpublish your eBook.
You can keep your account on Smashwords active after you remove your book, or you can ask them to delete your account.
|2d. Distribution in the Smashwords Premium Catalog. Although Smashwords operate a small retail ebook store (the Smashwords Store), since August 2009 the primary business focus of Smashwords has been ebook distribution to retail stores, library aggregators and affiliated partners. In support of this service, Smashwords created the Smashwords Premium Catalog, a subset of Smashwords titles that meet the mechanical requirements of our distribution partners. To learn more about these requirements, as well as the retailers, library partners and affiliated sales outlets to which we distribute, visit the Distribution information page. Our intention is to help every Smashwords author or publisher who desires distribution to receive it. Smashwords reserves the right to withhold distribution for any reason.
|Smashwords will sell your eBook on their platform, but the key part of their task is to distribute it to other retailers.|
|2e. Removal of poorly formatted works. At the top of the upload page where authors publish their works, Smashwords clearly communicates to all authors and publishers their responsibility to study and implement the Smashwords Style Guide’s formatting requirements prior to uploading a manuscript to Smashwords. Smashwords, at its option, may without warning close the accounts of authors and publishers who blatantly ignore the formatting requirements. We urge all Smashwords authors not to waste the time of readers, our retail partners or Smashwords with poorly formatted works.
|If you do not follow the format required for Smashwords they reserve the right to close your account.
WPR gives you detailed instructions on how to format correctly in the handbook.
|This section talks about what will break the terms of the agreement and what happens if the terms of the agreement are broken.|
|3a. Removal of Infringing or Defamatory Work of Author. Smashwords takes claims of infringement seriously and may take immediate action upon notice from someone claiming to be an Infringed party and pursuant to our DMCA policy [see policy at end of this document]. Generally, upon receipt of a written notice from a party infringed or defamed by Author’s material (or someone purporting to be his agent, publisher, attorney in fact or assign), Smashwords will remove the Author’s Work and reserves the right to remove any and all information about the Author, the Author’s Work or the publisher from the Site.||If your work breaks copyright or damages the reputation of someone else, Smashwords will remove your work as well as any other information they have about you from their website.|
|3b. Infringement by Others Upon Author’s Work. If an Author or copyright holder learns that a third party is violating Author’s copyright or pirating or illegally distributing a Smashwords-published work, the Author shall inform Smashwords; however, it is the Author’s responsibility to seek relief from the offending parties. If that work is published on Smashwords, Smashwords will remove it per section 3a above.||If you find out that someone is illegally using your eBook (downloading or sharing without buying it) you must tell Smashwords.
But it is up to you to take any action. If the person has published your eBook as their own book on Smashwords, Smashwords will remove it.
|3c. Rights Clearances and Other Legal Matters. It is Author’s responsibility to secure permissions to the Work prior to the time Author submits such work if any material from the work belongs to, or has been licensed to, someone else.||If you have used anyone else’s words or pictures in your eBook you must get permission from them before you publish your eBook.|
|4. Copyright. The copyright in the Work shall belong to the Author or the party that Author cites as the copyright holder. Author shall be solely responsible for filing its copyrights and any other intellectual property with the appropriate governmental body. It is the Author’s responsibility to place a copyright notice on the copyright page or some other prominent place in the Work.||You must be the copyright owner of all the material in your eBook.
You must put a copyright notice in your eBook (see the WPR Handbook about this).
|5. Formats of Digital Conversions. Author shall submit their Work as a Microsoft Word .doc file. Smashwords shall utilize its proprietary Meatgrinder technology to convert the book into multiple ebook formats, and publish the work for use in sampling, distributing and selling the work. The author/publisher is not authorized to independently sell or distribute Smashwords-generated file conversions outside of the Smashwords site or Smashwords distribution network without first receiving written permission from Smashwords (in other words, you cannot use Smashwords as a free file conversion service so you can sell the files elsewhere). You acknowledge that if you violate this requirement, you may forfeit any accrued earnings at Smashwords, and your account may be deleted without notification.||You must publish your book in the format Smashwords wants, using the Smashwords platform (the WPR handbook explains how).
You may not sell the Smashwords formatted version of your eBook to anyone somewhere else who does not use Smashwords or their distribution network. You may format your eBook in another way.
|6. Royalties. So long as the proper copyright protection subsists in the Work, no infringement notices have been filed, and revenues directly attributable to the Work are being collected by Smashwords, the Author and/or publishing party shall be entitled to the following payments:||If the copyright of the book is yours and if there is no legal claim against your eBook by anyone, you will earn royalties on sales of your book.|
|6a. Royalty Rates. The proceeds to the author or publisher will vary based on the sales outlet, and the method of the sale. For retail sales that originate at Smashwords.com, Smashwords pays authors/publishers 85% of the net proceeds from all sales (see 6b below for clear definition of “net”). Following the introduction of the Smashwords Affiliate Marketing Program on May 22, 2009, Smashwords began offering a net earnings-share rate of 70.5% for sales originating as a result of an affiliate. Authors/Publishers who do not wish to participate in the affiliate program may opt out a book at any time within 30 days of publishing the book. After the 30-day grace period, opt-outs become effective on the first day of the following month. Starting in September 2009, Smashwords began distributing books via major online retailers. In most instances, Smashwords will compensate authors at a rate of 60% list price, which works out to slightly more than 85% of the net proceeds received by Smashwords from the retailers. Smashwords will notify authors of the individual compensation rate they will receive from Smashwords for sales at each major channel partner with the Channel Manager, and will give authors/publishers the option to opt out of certain channel partners if they wish. Also see the Smashwords Royalty FAQ for current earnings-share rates, which are subject to change. For sales through the Smashwords Library Direct channel, announced August 7, 2012, Smashwords authors and publishers will earn 70% of the price paid by libraries. For sales though library aggregators, authors will typically earn 45% of the list price. Authors and publishers can control retail and library pricing within the Smashwords Pricing Manager feature, accessible from the Dashboard.||List price is the price that people see and pay.
From the list price, certain deductions are made (see below and 6b), and we then talk about the net proceeds.
Each retailer has their own fees, so how much you earn from different retailers will vary.
Smashwords will pay you 85% of money received from any sales after making certain deductions (see 6b below for a list of these fees).
You can choose not to belong to a special marketing programme (Smashwords Affiliate Marketing Program).
Sales to libraries have a different earning structure.
|6b. Electronic Editions. Smashwords agrees to pay the Author or Publisher (whomever uploaded the content) up to eighty-five percent (85%) of net proceeds received by Smashwords through the sale or licensing of your work (“List Price”). “Net proceeds” shall mean sales price paid and received less payment processing fees, affiliate fees, retailer discounts, costs due to erroneous or fraudulent transactions, credit card charge-backs and associated fees. Therefore, 85% of “net proceeds” does not equal 85% of the book’s sales price. Payment processing fees, for example, may account for a sizable percentage of the List Price for lower cost books because they include a nominal minimum per-transaction fee ranging charged to Smashwords by our payment processing service PayPal. For example, if the per-transaction fee charged by our payment processor is $.35, and a book is only priced at $1.00, then that $.35 accounts for 35 percent of the retail price. Smashwords fully discloses and estimates anticipated payment processing fees and estimated proceeds to the Author at the time you assign pricing for your works (to test this, sign in to your account and click to the Publish page and experiment with different pricing scenarios). Actual proceeds to the author may be greater than estimated if a customer purchases multiple books at the same time, thereby spreading some of the per-transaction fee across more than one book.||These are the deductions that Smashwords may make from the money received for the sale of your book BEFORE they calculate the 85% due to you.
– payment processing fees – any costs they have to pay their bank to pay you
– affiliate fees – these are marketing related fees
– retailer discounts – any discount that a retailer, for example Kobo, wants for selling your book
– costs of erroneous or fraudulent transactions – any costs Smashwords paid because of fraud
– credit card charge-backs and associated fees – any fees Smashwords pays to credit card companies
When you give your eBook a price when you first give it to Smashwords, you will be given an idea of what all these costs could be. Note that this price is also exclusive of VAT.
|6c. Free Copies. As administrator of your work, Author may use the Smashwords platform to distribute complimentary copies of the work, or personally email free files to people, even when you are generally charging a fee. However, Smashwords files cannot be mass-distributed via download at blogs, websites or other retailers outside the Smashwords network.
|You can choose to make your eBook free. However, you may not share multiple copies of the Smashwords file on your own blog or website for download, nor email copies of the Smashwords formatted files nor use Smashwords formatted files on another platform.|
|6d. Promotional Rights. Smashwords shall have the right to distribute samples of the Work in any form of media, including printed media, in order to promote (a) the author or author’s Work and/or (b) the Smashwords service. These samples will be licensed for free, non-commercial use, duplication and sharing, and will comply with the sample percentage authorized by the Author.||Smashwords has the right to give people a sample of your eBook to market it. This will be the same size as the sample you give (see the WPR handbook for more about this marketing strategy).|
|6e. Crawlable or Other Searchable Rights. Smashwords shall have the right to drive traffic to the Author’s Work on the Smashwords Site through (a) general Search Engine Optimization services (b) crawlable, promotional hypertext links or (c) arrangements with third parties which make searchable certain sample portions of the Work. In the event that revenue is realized by Smashwords from this arrangement, it shall be treated as an electronic edition under Section 6a.
|Smashwords will use different ways to market your eBook.|
|6f. Other Subsidiary Rights. Other than stated above, Smashwords, in its current version, shall only Publish electronic versions of the Work, and keeps no other subsidiary rights to the Work including hardcover or paperback editions, audio editions, multimedia editions, theatrical editions, first and second serial rights or media rights other than the electronic version distributed on our Site. Therefore, if another publisher will allow you to keep electronic rights to the Work, you may continue to Publish the Work electronically while publishing a printed version of the Work with a print publisher. These rules are subject to change from time to time, upon electronic or other notice to the End-users and any other users.
|A subsidiary right is a right for someone to use your eBook in other ways – as a film, audiobook, paperback books, theatre production.
You own these subsidiary rights and can choose to sell them to people if you wish. Smashwords will publish only the electronic version of the eBook.
You can enter into agreements with other people for the subsidiary rights of your eBook.
(We suggest you get legal advice before selling any subsidiary rights.)
|7. Author-Controlled Terms. The Site allows Author to control pricing, distribution channels, sampling rights and output formats. Smashwords may extend author control in the future. All Premium Catalog books are automatically opted in to all new and existing distribution channels. In all instances, prior to activating a new distribution channel, Smashwords will provide authors and publishers at least 48 hours advance notice to allow time to opt out from the Smashwords Channel Manager if they choose. This advance notice will generally be provided through Site Updates, and to subscribers of author/publisher alerts, and other promotion. Effective January, 2015, Authors and publishers who wish to pre-emptively opt out of all new, unannounced distribution channels may do so within the Smashwords Channel Manager by following the link at the bottom of the page labeled Manage Pre-emptive Opt Out Settings.||You control the price of your eBook, where it is distributed, how much an End-User can get at no cost and the format in which you publish your eBook.
If Smashwords adds any new distribution channels they will give you a chance to refuse to sell your book on these.
|8. Statements and Payments of Author Royalties:
Although Smashwords will refer in this agreement to “Royalties” for the sake of simplicity, payments to authors and publishers in the eyes of the IRS are usually considered “other income.” Effective February 2017, Smashwords pays author (or Author’s Agent) and publisher earnings on a monthly basis, typically between the second and final week of each month, and never later than 40 days following the close of each calendar month. Payments to authors are based on the accrued balance earned as of the last day of each calendar month, and this accrued balance is based on actual payment to Smashwords by the customer or retailer (please remember that retailers will usually report sales to Smashwords before those sales become payable to Smashwords, and therefore before they can accrue to the author’s payable balance). Refer to the Smashwords FAQ item titled GETTING PAID for detailed information on how payments work, and how authors can avoid or troubleshoot payment delays. Authors can track their real-time sales and anticipated earnings payments by visiting the Dashboard feature from their Smashwords account. From the Payee Page, authors, agents and publishers can select their payment method of paper check (US authors/publishers only) or PayPal. It is the author’s responsibility to ensure their payment settings are complete and accurate, otherwise payments may be delayed until the issue is resolved and verified. PayPal users, for example, must open and maintain of their own account at PayPal prior to providing their PayPal address to Smashwords in the Smashwords Payment Settings page. If the author selects the PayPal payment method, it is their responsibility to provide a PayPal address that can accept payments. For example, PayPal will not allow Smashwords to remit payments to PayPal accounts in Nigeria. Paper checks require accrued earnings of $75.00 or more. Prior to February 2017, Smashwords paid quarterly. For PayPal, the payment threshold is one penny effective January 2017. Previously the PayPal payment threshold was $10.00. If accrued author’s, agent’s or publisher’s aggregate earnings are less than the one penny threshold for PayPal or less than the $75.00 threshold for paper check payments, Smashwords will delay payment until such monthly period as the total earnings due meet the threshold. If Smashwords overpays earnings, such as in cases when fraudulent or unauthorized purchases are charged back to Smashwords after earnings payments are made, then Smashwords will deduct the funds owed from the author’s, agent’s, or publisher’s aggregate accrued earnings. If the amount owed exceeds the author’s, agent’s, or publisher’s aggregate accrued earnings, the author (or agent or publisher) agrees to remit a payment back to Smashwords within 20 days of notification to adjust the overpayment. Sales transacted at the Smashwords.com web site are reported in real time. Sales reporting for sales transacted via Smashwords retail distribution partners (Barnes & Noble, Amazon, iBooks, Gardners, Kobo, OverDrive, and others listed at https://smashwords.com/distribution) are reported when the retailer reports back to Smashwords, which can range from same day (in the case of Barnes & Noble and the Smashwords Store), to next day (iBooks, Kobo) or monthly (Garders, others). Note that most daily sales reports from sales channels are not yet final and are best utilized for trend analysis purposes only.
|Any royalties that you earn will be paid monthly, no more than 40 days after the end of the month in which the eBook was sold.
You will need to open a PayPal account. You can read more about this in the handbook.
Smashwords has the right to claim back any money that they overpay you for incorrect sales or fraudulent transactions.
|8a. Tax withholding: The United States Internal Revenue Service (IRS) requires Smashwords to collect tax certifications from all authors and publishers and withhold all required taxes. All authors and publishers must complete the online Form W-9, Form W8-BEN or Form W8BEN-E before royalty payments can be made. For US residents and US businesses, Smashwords requires a valid SSN or EIN, and US postal mailing address. If US-based authors and publishers do not provide valid tax id information, then the IRS requires Smashwords to withhold 28% of earnings which Smashwords must remit to the IRS within days of transacting the payments to authors/publishers. For authors and publishers outside the US, the automatic withholding rate is 30%. Many countries have tax treaties with the United States that entitle residents and businesses located in these countries to receive either partial or full exemption from the 30% tax withholding. To qualify, authors and publishers should find out if their country has a tax treaty (see the Support Center link below) with the US. If a tax treaty is in effect, the author or publisher may be required to provide their US ITIN/EIN or their foreign tax identification number. For foreign authors and publishers, the Form W8BEN and Form W8BEN-E are valid for three (3) years only after which a new form will need to be submitted. Learn more by visiting your Payee page at https://www.smashwords.com/account/payee. Additional information can be found in the Smashwords Support Center for links to forms and additional information – http://www.smashwords.com/about/supportfaq#Publishing
|If you live outside the US, your Smashwords earnings are subject to a 30% tax withholding, mandated by the United States Internal Revenue Service (IRS).
If you are a South African, South Africa has a special tax treaty with the USA, and we can claim some or all of the withholding tax back.
How do I apply for reduced tax withholdings?
To qualify for reduced tax withholdings, you will need to complete the online Form W8BEN or Form W8BEN-E and request treaty benefits when you set up your Payment Settings. When you go to your Payment Settings page, you will be prompted to answer questions that will determine which form you need to complete.
If you are an individual/sole proprietor residing in a country that has treaty benefits with the United States, you will be required to provide a US tax identification number, ITIN, or your foreign tax identification number to obtain reduced withholdings.
If you are an entity residing in a country that has tax treaty benefits with the United States, you will be required to provide the US identification number, EIN, to obtain reduced withholdings.
How do I get a US tax identification number?
Authors and publishers who don’t have an IRS-issued tax identification number can apply for one from the IRS. When you apply for an ITIN or EIN, the IRS requires you also provide a hand-signed letter from Smashwords, written on Smashwords letterhead, stating your reason for requesting an ITIN. To obtain the letter from Smashwords, please request one via the customer support link.
After you receive the letter, go to irs.gov and fill out the W-7 form. Here’s a link to the form (opens a PDF file): http://www.irs.gov/pub/irs-pdf/fw7.pdf Here’s information on how to fill it out: http://www.irs.gov/instructions/iw7/index.html Here’s a link to the tax treaty articles, where you can find your country and cite the article number in our W-7 form (opens a PDF): http://www.irs.gov/pub/irs-pdf/p901.pdf
Please speak with your accountant, or direct form-related questions to the IRS’s online support forum. Here’s a summary of contact information for IRS offices outside the U.S.: http://www.irs.gov/uac/Contact-My-Local-Office-Internationally The IRS cautions it can take up to 6 weeks for them to process your application, so please apply now.
Once you receive your US Tax Identification Number (ITIN or EIN), go into your Payment Settings page and enter your new number into your account.
A tax certificate will be issued for any tax deducted on Royalties earned on Smashwords. The tax paid on these Royalties can be deducted from any tax payable on the income declared in South Africa.
|9. Author and Publisher Warranties. The warranties and representations contained in this Agreement extend to the Author and its licensees and successors and assigns. By uploading content to Smashwords, you agree that any violation of the warranties below may result in immediate closure of your account and the forfeiture of accrued earnings.||All the terms and conditions of this Agreement will also apply to anybody to whom you licence this eBook, anyone to whom you give (assign) the copyright or anyone who inherits the rights to your eBook. (WPR urges you to put a clause in your Last Will and Testament to leave your copyright to someone.)|
|9a. By submitting Your Work to Smashwords for publication, you, warrant that you are the author or exclusive publisher or designated author or publisher agent and you warrant and represent that the work (the book) is complete and the author:
• is the only author of the Work;
|When you submit your ebook, you guarantee the various things in this clause.
Remember, you may not agree to any contractual agreements or terms and conditions if you are under the age of 18.
|9b. You further warrant that the Work contains no materials which:
• violate any right of privacy which is libelous or violate any personal right or other right of any kind of any person or entity (this includes publishing a person’s private email address without their permission);
• would violate any of Your contracts or would disclose any information given to You on the understanding that it would not be published or disclosed;
• plagiarize or pirate any other work or infringe upon any copyright, trademark or other proprietary right;
• Are injurious to End-Users or others including but not limited to recipes, formulae or instructions
• are defamatory to any person or entity
• violate the publicity rights of another person or entity
• violate state and federal laws.
• advocates hateful, discriminatory or racist views or actions toward others
• advocates or condones violence against another person, whether or not the other party is a willing participant
• advocate illegal activities
• advocates the use of Private Label Rights (PLR) content to make money on the Internet, or the modification of such content for the creation of Internet content
• contain images or illustrations depicting individuals perpetrating graphic violence upon another individual or individuals
• Fine art books of a non-erotic nature that contain nudity may be accepted on a case by case basis at the sole discretion of Smashwords and/or its retail partners
• contain hyperlinks to affiliate marketing pages, especially if the ebook is published for the sole intent of publishing hyperlinked content that directs readers to affiliate marketing pages
• advocate or promote “systems” about how to make money on the Internet by publishing ebooks
• advocate or promote “get-rich-quick” schemes and systems
• contains SEO keyword spam, either in your manuscript or your metadata tags
• contains advertisements for products or services, or is intended to act as an advertising or upselling vehicle for products or services
• contains incomplete information and prompts the reader to access external resources or services that require registration or payment
• is an incomplete book for the purpose of promoting the purchase of the complete book elsewhere or on Smashwords. Books priced at FREE are held to this same standard.
• makes false, misleading or inaccurate claims or promises in the book or book description
• is not the same book you previously published at Smashwords, then republished as a new book for the sole purpose of having it appear as a new book again. You must upload all new versions of previously published Smashwords books via the Dashboard’s “upload new version” link.
|When you submit your ebook, you guarantee the various things in this clause.
Very Important here is that
1. your work does not damage anyone’s reputation or share private information about a person.
2. your work does not plagiarise someone else’s work.
Please read through the list very carefully since all the other items are also important.
|9c. You further warrant the book meets the following standards for originality:
• this is not a public domain work;
• the book does not include word-for-word scrapes – or is not a compilation – from Wikipedia or other public domain, government or commercial services;
• your books do not and will not appear elsewhere on the Internet authored by people other than yourself or by pen names (pseudonyms) different from your pen name at Smashwords;
• none of your book content, either in part or in its entirety, is sourced from “Private Label Rights” articles (a.k.a. “PLR“), article “spinners,” books rewritten from PLR, or ebooks or information sources which license the same content to other people;
• you’re not uploading generic, undifferentiated works (such as “101 Household Cleaning Tips”). If it’s not 100% original, or if it looks like PLR, it’s not allowed on Smashwords.
• does not contain or comprise machine-generated language translations (all translated books must be human-translated and edited, not translated by language translation software such as Google Translate).
|You must guarantee that your work is not a book that is now in the Public Domain (50 years after the death of the author).
You must also guarantee that you have written this work and not simply found bits and pieces from the internet to create it.
|9d. You further warrant the book represents a complete work:
• this is not an unfinished work-in-progress;
• the uploaded file is not a partial sample or sample chapter, or is not a collection of sample chapters, or not simply a catalog advertising other books or products
• the work is complete and self-contained, and does not try to upsell the user to purchase, or register for, access to information that should have been contained in the book;
• the title meets the definition of “book” or “story.” Short incomplete ramblings or works that read more like brochures than books are not allowed.
• the uploaded book represents a complete story with a beginning, middle and end. Exception: Serials are allowed. Each serial cover image should be different, even if the only difference is a notation on the cover image about the serial’s position or episode number in the series. To avoid customer confusion, we recommend it should be clearly identified as a serial in the book description and the serial episodes should be linked together using the Smashwords Series Manager tool.
|You must guarantee that this is a complete and finished eBook.|
|9e. Accuracy of Payment Settings page information
When you establish your account at Smashwords, you will complete a Payment Settings page (located under Account: Payment Settings) which collects information to satisfy IRS-mandated tax compliance requirements.• You acknowledge it is your responsibility to keep your Payments Settings page updated with accurate information.• You acknowledge that incorrect information may prevent or delay royalty payments.• You acknowledge it is strictly prohibited to knowingly enter false information when certifying your tax status. Deliberate attempts to subvert IRS rules and regulations – by entering false information to gain preferential tax treaty status or reduced tax withholdings – may lead to immediate account closure and forfeiture of earnings.
|It is your responsibility to ensure that the Payment Settings Page is correct and complete on your Smashwords Profile.
|9f. Special guidelines for erotic literature:
Smashwords has always allowed a wide range of erotic literature, and has been a strong industry advocate to protect the ability of authors and publishers to publish legal erotica, and for readers to enjoy it. Like all publishers at Smashwords, erotic literature authors and publishers are held to all the requirements listed above and below in the Smashwords Terms of Service. For the benefit of our erotica authors and publishers, we’ve created this special breakout section in the ToS to provide additional guidance unique to erotic literature. We understand that there are many gray areas when it comes to erotic content, so any attempt to define black and white policy is fraught with risk that it might be unevenly or inconsistently applied. In the spirit of providing the greatest possible transparency, we define what we can define. These extra guidelines below are intended to help authors and publishers maximize the distribution of their erotic content; help avoid crossing lines that would be detrimental to their publishing and/or detrimental to their fellow community of professional erotic writers; and avoid publishing content that would be detrimental to their relationship with retailers, library partners and Smashwords. These guidelines are subject to change. As you’ll see below, a few taboo categories have been identified as allowed at this time but not encouraged. These categories should be considered “under watch” and subject to additional review scrutiny or removal, and subject to future policy changes due to legal or business considerations, or subject to policy change if too many of the publishers in these discouraged categories push the limits of acceptability, or subject to individual title or publisher removal if an individual publisher publishes high volumes of this discouraged content or pushes other limits of acceptability. If you believe your titles were removed in error, please contact the Smashwords Support team by clicking the “Support” link below and request a re-evaluation. These guidelines will be enforced at the sole discretion of Smashwords. Thank you for your understanding as we work to preserve the greatest level of publishing freedom for our professional erotic writers and publishers.
• Neither the book cover nor the book interior of erotic content may contain graphic images of nudity (either photographic or illustrated) or persons involved in sex acts
• Erotica authors and publishers must categorize their books under fiction: erotica when uploading to Smashwords, and must maintain these categories. If an author or publisher miscategorizes erotic content under non-erotic categories, they risk either removal of the work or account termination, at the discretion of Smashwords.
• Smashwords recommends that book descriptions and titles for erotic literature should be kept “PG-13.” Excessive profanity in book descriptions may lead to further scrutiny and review, or blocked distribution or removal from Smashwords.
• Smashwords has a zero tolerance policy for underage erotica (characters under age 18), and this policy has been in effect since the beginning of Smashwords in 2008. Underage erotica is strictly forbidden, and the upload of such will lead to immediate account termination. In erotic literature, children or underage minors cannot be engaged in sexual acts or situations, bear witness to such situations, be shown considering sexual acts, or be shown thinking about sexual acts.
• “Barely legal” erotica is strongly discouraged, and is subject to additional review and may be removed without notice at the sole determination of Smashwords, especially if characters are in situations – or have mannerisms – that suggest that the characters are actually underage.
• Rape erotica, where the predominant theme is rape violence for titillation, is strongly discouraged, and is subject to additional review and may be removed at the sole determination of Smashwords.
• Scat erotica is prohibited.
• Snuff and necrophilia erotica is prohibited
• Bestiality erotica is allowed but not encouraged. A one-off title is more likely to be acceptable than if a publisher is publishing dozens or hundreds of such titles. At Smashwords discretion, such content may be removed or accounts closed.
• Incest and pseudo-incest (sexual relations among non-biologically related relatives and siblings) erotica is allowed, but it will be blocked by some retailers and library aggregators.
|This section explains what Smashwords allows as erotic literature.
If you plan to write erotica (an eBook that aims to arouse sexual feelings) you must read this very carefully.
|10. End Users. “End-Users” include authors, publishers and customers. Customers are those who pay whichever fee is set by the Author to purchase or download a Work. Customers are allowed to use each copy of the Work for their personal enjoyment in any reasonable non-commercial manner in compliance with copyright law and pursuant to this Agreement.
10a. Rights of Use.
2. Free works including sample works: Free works and sample works published at Smashwords are the copyrighted material of the author or publisher, and therefore are not authorized for redistribution without prior written consent from Smashwords. Third parties are not authorized to download, host and otherwise redistribute Smashwords books without prior written agreement from Smashwords. Directory services and affiliate marketers may reproduce the metadata information found on each book’s book page (cover image, book description, price, etc.) provided hyperlinks direct visitors to the Smashwords book page, and provided users are not charged for access to these listings, and are not required to register their personal information to gain access to these listings.
|This clause is for the End-User (the person who downloads and reads the work).
This clause says that End-Users may read your eBook in a legal way but they may not sell it or share it even if it is a free eBook.
If an End-User wants to distribute your eBook, they have to get written permission first from Smashwords.
Anybody can market your eBook on their website as long as they do not charge access to their website, and if they give a direct link to your eBook on Smashwords.
|10b. Fees and Services. By using the Site the End User ebook customer is agreeing to pay the fees as presented by Smashwords and set by the Author or Publisher at the time of purchase. The Author sets the price for their individual Works. End User will have an opportunity to review and accept the fees for the purchase End User is requesting prior to payment. All purchases are final and non-refundable. The Site may change pricing policies and fees for services we provide at any time from time to time and changes shall be effective immediately. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with your use of the Site.||The End-User agrees to pay fees and charges for their purchase of your eBook and may not return it or get a refund.|
|10c. Author, Publisher and Customer Conduct. Smashwords and its users work together to keep the Site working properly. Please report problems and policy violations to Smashwords. The warranties and representations contained in this Agreement extend to End Users and other licensees and successors and assigns of Smashwords. While using the Site, Services or Work, End Users agree to not:
• violate any laws, third party rights, or any policies which we have posted on the Site from time to time;
• upload any material which violates this Terms of Service;
• use the Site, Service or Work if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our Site;
• circumvent or manipulate our fee structure or the billing process;
• use robots, spiders, shills or other methods in an attempt to unfairly game the site’s ranking systems for downloads, reviews and sales, or hire others to do the same
• engage in advertising, marketing, spam, chain letters, pyramid schemes or money laundering involving or using the Work from the Site;
• use Smashwords book reviews for any other purpose other than to leave a legitimate book review, i.e. marketing or advertising other products or services, or using reviews as a method of contacting authors
• distribute viruses, malware or any other technologies that may harm Smashwords, or the interests or property of Smashwords users;
• copy, modify, or distribute content from the Site, or Smashwords’ copyrights and trademarks;
• engage in abusive or profane behavior toward Smashwords, its employees, its authors, fellow users or retail partners; or
• threaten Smashwords or Smashwords retail partners with legal action due to inaccurate book listings or failure to remove books in a timely manner (visit https://www.smashwords.com/about/supportfaq#error to learn the process for correcting errors).Without limiting other remedies, we may limit, suspend, or terminate the Smashwords member accounts, revoke earnings, prohibit access to our Site, demand return or destruction of any Work improperly taken or used from the Site or Service and take technical and legal steps to keep users off the Site if we think that they are creating problems or legal liabilities, or acting inconsistently with the letter or spirit of our policies.
|If the End-User sees any problems on the Smashwords website, or if you do, you should tell Smashwords.
When they are using the Smashwords website, the End-Users may not break any laws or misbehave in any way
If an End-User does this, Smashwords may suspend or cancel their account.
|11. Ownership. You acknowledge and agree that the Smashwords Site and Service are proprietary to Smashwords and that the Work is proprietary to the Author; that none are proprietary to End User.||You acknowledge that you are the sole owner of the eBook and that the website and service belong to Smashwords.|
|12. Termination. Either party may terminate this Agreement at any time without notice. Registered Smashwords members may cancel their membership at any time, and published Smashwords authors may unpublish their book listings at any time. However, purchased books will not be removed from customers’ accounts, either at Smashwords or at Smashwords-supplied retailers. When an author or publisher unpublishes a book at Smashwords, this causes automated systems at Smashwords to transmit takedown notices to Smashwords retailers, which usually go out once per week. It typically takes anywhere from two days to two weeks for Smashwords retail partners to remove listings once we notify them. If a Smashwords retailer has failed to remove your book within three weeks, see the Smashwords FAQ for instructions on how to notify Smashwords so we can help correct the error: https://www.smashwords.com/about/supportfaq#error||You or Smashwords can end (terminate) this Agreement at any time.
There may be a short period of time between your ending the Agreement and your eBook being removed from the different retailers’ websites.
If this is not done in three weeks, you can contact them.
|13. Indemnification.||This section talks about how you as the author will protect (indemnify) Smashwords in various situations.|
|13a. General. You (Author, Publisher or End User) agree to indemnify and hold Smashwords and its licensees, successors and assigns, and its and their distributors, customers, officers, directors, members, employees and agents, harmless against any expense (including, but not limited to, reasonable attorneys’ fees and disbursements) or judgment, settlement or other liability arising out of any claim or legal proceeding asserting claims contrary to any warranty or representation made by You in this Agreement.||If you say something that is not true in terms of this agreement and somebody makes a claim against Smashwords, you will protect Smashwords and any person related to them from any expenses they have to pay to defend themselves.|
|13b. Notice of Claim. Upon receiving notice of any claim, demand, action or suit or other legal proceeding alleging facts inconsistent with or contrary to any of the warranties or representations contained in paragraph 10, Smashwords shall have the right to withhold any sums payable to the Author in reasonable amounts as security for the payment of the Author’s potential obligations pursuant to the indemnity contained in this paragraph 13. It is intended that the right granted by this subparagraph 13b shall not be unreasonably or frivolously exercised by the Smashwords.||If Smashwords receives a claim talked about in 13a, they will hold back any money owed to you until the claim is resolved. They will not do this without a good reason, though.|
|14. Disclaimer of Publisher’s Warranties.||This section talks about when the Publisher can deny responsibility for various things.|
|14a. DRM, Piracy and the “Trust” System. Smashwords is a strong proponent of author’s rights, and the right of authors and copyright owners to receive compensation for their digitally published Works. Therefore, Smashwords strongly discourages piracy/infringement of Author Work and encourages customers to purchase licensed copies. However, Smashwords does not publish works containing digital rights management schemes that limit the customer’s ability to consume Author’s Work as they see fit. Therefore, Smashwords cannot completely prevent piracy/infringement of Author’s Work (the reality of the matter is that even DRMed content can be reproduced and pirated, just as easily as a printed book can be scanned and digitized). When Author lists the Work on Smashwords you are trusting the consumer to honor your legal copyright and abide by the licensing terms you set. There is a growing body of evidence indicating that DRMed Works do not sell as well as non-DRMed Work because customers resent limitations and don’t appreciate being mistrusted. Non-DRMed Works often outsell DRMed Works by leveraging the viral nature of uninhibited sampling and sharing which can dramatically increase your total audience and sales opportunities. There is also evidence that by pricing your Works for less than printed equivalents, you can further decrease piracy and increase sales volume. You understand that Smashwords is distributing the Works according to this so described Trust system.||Smashwords believes you as author have a right to your intellectual property (in the form of your eBook) and the right to earn money from selling it.
Smashwords does not use any Digital Rights Management processes (a way to stop people from sharing your eBook illegally). Smashwords believes there should be trust between you, them and the End-User, and you agree to this ‘Trust System’ by agreeing to this Agreement.
|14b. Events Voiding Warranty. Smashwords does not warrant the (a) defects caused by failure to provide a suitable installation environment for the Product, (b) damage caused by disasters such as acts of God, wars, riots, strikes, terrorism, governmental restrictions, fire, flood, wind, and lightening, (c) damage caused by unauthorized attachments, modifications or mis-configurations to the Smashwords Environment, or (e) any other abuse or misuse by Author or the End-Users. Any breach of the End-User License Agreement by or on behalf of an End-User, including, without limitation, unauthorized modification or distribution of the Product or any portion thereof, will void any and all warranties.||Smashwords does not make any guarantees for various things including defects if the eBook is installed in the wrong way; damage by various acts of war or of God; damage caused by misuse of their platform or any other abuse or misuse by you or the End-User.|
|14c. WARRANTY DISCLAIMER. All Works and the Service is provided to End Users “AS IS” and “WITH ALL FAULTS.” THE ENTIRE RISK AS TO THE SELECTION AND USE OF THE SMASHWORDS SERVICE OR ANY MODIFICATIONS THERETO OR THE WORK IS WITH AUTHOR AND END-USERS. SMASHWORDS DOES NOT WARRANT THAT THE PRODUCT OR MODIFICATIONS WILL MEET THE REQUIREMENTS OF END-USERS. TO THE EXTENT THAT SMASHWORDS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.||The Smashwords service is provided ‘as is’ to the End-User and makes no guarantees.|
|14d. LIMITATION ON DAMAGES. IN NO CASE SHALL SMASHWORDS BE LIABLE TO AUTHOR OR END-USERS, OR ANY OTHER THIRD PARTY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND. IN NO CASE SHALL SMASHWORDS OR ITS RETAILERS BE LIABLE FOR ERRORS OF ANY KIND THAT RESULT IN SHIPMENT OR AVAILABILITY DELAYS, MISPRICINGS, OR INACCURATE OR INCOMPLETE PRODUCT LISTINGS. It is the Author/Publisher’s responsibility to monitor retailer listings and report errors to Smashwords, in which case Smashwords on a best efforts basis will strive to work with the retailer to correct the error. In the event that Smashwords is found liable for any damages, for any reason whatsoever, Author hereby expressly agrees that, in no event will Smashwords’ liability to Author exceed the amounts collected by Smashwords for the Author’s book in question.||Smashwords will not be responsible for any costs related to any issue relevant to your eBook (like wrong price, incorrect details, mistakes in delivery on the platform).
It is your responsibility to check that the price, details and information about your eBook are correct on Smashwords and any other retailer’s website. Smashwords will do its best to work with you and the retailer to fix the mistake.
If Smashwords is found by a court to have to pay costs for any loss, the amount will not be more than the amount of money you have received from Smashwords for your eBook.
|15. MISCELLANEOUS.||The following clauses are varied and do not fit elsewhere.|
|15a Entire Agreement. This Agreement is the entire agreement between the parties concerning the subject matter hereof.||Everything that you read here is the agreement. There are no other parts of the agreement that can be considered.|
|15b Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of California. If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.||If you have a legal disagreement with Smashwords, the laws of California in the United States will be the laws used to judge the case.
If any one part of this agreement is found to be invalid, it will not make the rest of the agreement invalid.
|15c No Agency. No agency, partnership, joint venture or other joint relationship is created hereby.||When you agree to this, you note that the agreement does not mean that you and Smashwords
will not become an agent for the other, that is, someone who acts on behalf of the other.
have not formed a business in the form of a legal Partnership.
have not formed a joint venture company.
have not become legally joined in any way other than is explained in the contract.
|15d Legal Action. Venue for all purposes hereunder shall be in Santa Clara County, California, and the parties hereto hereby consent to such jurisdiction and venue. If any action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).||If you have a legal disagreement with Smashwords, the case will be heard in California in the United States. The person who wins the case will be allowed to claim their costs from the loser.|
|15e Acknowledgement. By using the Service you acknowledge that you have read this Agreement, understand it and will be bound by its terms and conditions.||When you use the Smashwords service, you are agreeing to all the terms and conditions in this agreement.|
|IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and the year upon which the Author first approved such Terms of Service.||You bring this agreement into force on the date that you sign up to Smashwords and click on I accept …|