THIS
AGREEMENT (hereinafter called the Agreement) is made this ____ day of
___________, 20 , between (hereinafter
called the “Publisher”) and
(hereinafter called the “Author,” which term
shall be deemed to include the Author's executor, devisees, heirs, and literary
assigns).
WHEREAS, the Author desires the Publisher to
publish the Author’s work titled
,
(hereinafter called the “Work”), and Publisher desires to publish the Work;
NOW THEREFORE in consideration of the
promises hereinafter set forth and for valuable consideration, receipt whereof
is acknowledged, the parties agree as follows:
1.
Grant of Publishing Rights
A.
The
Author hereby grants and assigns to the Publisher, its successors,
representatives, and assigns, the sole and exclusive right to publish (i.e.,
print, publish, and sell) the Work in the English language in all forms in the
United States of America, its territories and dependencies, and Canada, during
the full term of copyright and any renewals and extensions thereof, except as
provided herein.
B.
The
Publisher shall have the sole and exclusive right to publish or to license the
Work for publication in the English language or in any other language in the
United Kingdom and in any other foreign country, except as provided herein.
C.
The
Author shall execute and deliver to the Publisher any and all documents which
the Publisher reasonably deems necessary or appropriate to evidence or
effectuate the rights granted in this Agreement.
D.
If,
at any time during the effective term of this Agreement, a claim shall arise
for infringement or unfair competition as to any of the rights which are the
subject of this Agreement, the parties may proceed jointly or separately to
prosecute an action based on such claims. If the parties proceed jointly, the
expenses (including attorneys’ fees) and recovery, if any, shall be shared
equally by the parties. If the parties do not proceed jointly, each party shall
have the right to proceed separately, and if so, such party shall bear the
costs of litigation and shall own and retain any and all recovery resulting
from such litigation. If the party proceeding separately does not hold the record
title of the copyright at issue, the other party hereby consents that the
action be brought in his, her or its name. Notwithstanding the foregoing, the
Publisher has no obligation to initiate litigation on such claims, and shall
not be liable for any failure to do so.
E.
Nothing
contained in this Clause shall be construed as limiting, modifying or otherwise
affecting any of the rights granted to the Publisher under this Agreement.
2.
Copyright
Copyright of the Work, if not heretofore
registered, shall be registered by the Publisher, upon first publication, in a
timely manner in the name of the Author, in the United States and in such other
countries as the Publisher deems feasible or desirable, and the proper
copyright notice or notices necessary to protect copyright to and in any work
shall be printed on the reverse side of the title page or in another
appropriate place, in every copy thereof, in the name of the Author. The
Publisher shall also have the right to effect any renewals of copyright provided
by law and the right to any assistance from the Author or Author’s heirs,
successors, or assigns, essential thereto. 3. Author's Warranties and Indemnity
A.
The
Author warrants to the Publisher and its licensees that she is the sole Author
and proprietor of the Work; that the Work has not heretofore been published in
book form; that she is the owner of all the rights granted to the Publisher,
and has full power to enter into this agreement, and that said rights are not
subject to any proper agreement, lien, or other claim or rights which may
interfere with the rights herein granted; that the Work is original and not in
the public domain; that it does not violate the right of privacy of any person;
that it contains no libelous, obscene, or other unlawful matter; and that it
does not infringe upon the copyright or violate any other right of any person
or party. The Author agrees to hold the Publisher harmless against any damages,
including attorney's fees, finally sustained in any suit involving the
Publisher or its licensees by reason of a violation of any of these warranties.
B.
If
any such suit is instituted, the Publisher shall promptly notify the Author and
may withhold payments due to the Author under this Agreement, until such suit
has been settled or withdrawn. If a final adverse judgment is rendered and is
not discharged by the Author, the Publisher may apply the payments so withheld
to the satisfaction of such judgment. The Author undertakes for herself, her
successors and assigns, to execute at any time, on request of the Publisher,
any document or documents to confirm or continue any of the rights defined
herein, and to take all proceedings necessary to enforce copyright in the
United States and elsewhere.
C.
If
the Author unreasonably disapproves of any out-of-court settlement recommended
by the Publisher and the claim or suit proceeds to trial, the Author shall be
liable for all the Publisher's fees, costs, damages, and expenses connected
with such trial regardless of outcome. The Publisher shall have the right to
reasonably extend the benefit of the indemnities to any person, firm, or
corporation at any time, and the Author shall be liable thereon as if Author's
warranties were originally made to such person, firm, or corporation.
D.
The
provisions of this Section 3 shall survive the termination of this Agreement.
4.
Delivery of New Work Manuscript
A.
The
Author agrees to deliver to the Publisher one (1) copy of the final manuscript
of the Work, in content and form satisfactory to the Publisher, on or before _____________________,
20 , (hereinafter referred to as the “Initial Delivery Date”), in proper shape
for the press. The Author agrees that one (1) additional copy shall be
delivered on floppy disks, formatted to be compatible with Microsoft Word,
Version . The Author agrees to make and keep at least one (1) complete copy of
the manuscript and such disk. Failure to deliver in all respects as defined
herein shall be just cause for the Publisher to terminate this agreement.
B.
The
Author shall deliver to the Publisher, not later than the Initial Delivery Date
unless otherwise designated by the Publisher, each of the following materials:
i)
The
Author shall deliver to the Publisher, at the Author’s sole expense, written
authorizations and permissions for the use of any copyrighted or other
proprietary materials (including but not limited to art and illustrations)
owned by any third party which appear in the Work and written releases or
consents by any person or entity described, quoted or depicted in the Work (hereinafter
collectively called the “Permissions”). If the Author does not deliver the
Permissions, the Publisher shall have the right, but not the obligation, to
obtain such Permissions on its own initiative, and the Author shall reimburse
the Publisher for all expenses incurred by the Publisher in obtaining such
Permissions.
ii)
The
Author acknowledges and confirms that the Publisher shall have no liability of
any kind for the loss or destruction of the Manuscript or any other documents
or materials provided by the Author to the Publisher, and agrees to make and
maintain copies of all such documents and materials for use in the event of
such loss or destruction.
C.
If
the Publisher, in its sole discretion, reasonably deems the Manuscript, and/or
any other materials delivered by the Author to be unacceptable in form and
substance, then the Publisher shall promptly advise the Author by written
notice, and the Author shall cure any defects and generally revise and correct
the Manuscript and/or other materials to the reasonable satisfaction of the
Publisher, and deliver fully revised and corrected Manuscript and/or other
materials promptly after receipt of the Publisher’s notice.
D.
If
the Author fails to deliver the Manuscript or other materials required under
this Agreement, and/or any revisions and corrections thereof as requested by
the Publisher, on the dates reasonably designated by the Publisher, or if the
Author fails to do so in a form and substance reasonably satisfactory to the
Publisher, then the Publisher shall have the right to terminate this Agreement
by so informing the Author by letter sent by certified mail, return receipt
requested, to the address of the Author set forth herein. Upon termination by
the Publisher, the Author shall, without prejudice to any other right or remedy
of the Publisher, immediately repay the Publisher any sums previously paid to
the Author, and upon such repayment, all rights granted to the Publisher under
this Agreement shall revert to the Author.
5.
Author
Changes to the Work
The Publisher agrees to allow the Author to
makes changes in the Work, at the final proof stage, costing up to an amount of
Two Hundred Fifty dollars ($250), other than for corrections of compositor's
errors. Should the cost of such alterations exceed this sum, the balance will
be charged to the Author's royalty account, provided, also, however, that the
Publisher shall promptly furnish to the Author an itemized statement of such
additional expenses, and shall make available the corrected proofs for
inspection by the Author. The Author agrees to correct and return, no later
than ten (10) days after the receipt thereof, proofs provided by the Publisher.
The Author agrees to deliver to the Publisher final revised copy satisfactory
to the Publisher in content and form.
6.
Style,
Price, Promotion, Distribution
A.
After
consultation with the Author, the Publisher shall have the right, but not the
obligation, to publish and re-publish the Work at its own expense in such
format and style, cover or covers, manner, and advertisement, and at such
price, as it deems suitable except that the initial publication shall be with a
title and price agreed to by the parties in writing.
B.
If
the Publisher wishes to make editorial changes or deletions in the Work
manuscript, it shall consult with the Author prior to publication about these
changes, and if the Author and Publisher cannot agree on the changes or
deletions, the issues at question shall be decided upon by a mutually chosen
third party. The Publisher reserves the right to reject the Work for any
reason, up until , 20 , with written notice to the Author.
C.
The
Publisher agrees to publish the Work within eighteen (18) months from the date
of this contract. In case of delays from causes beyond the control of the
Publisher, or in case the Author fails to return proofs within ten (10) days
after they have been delivered to her, the period shall be extended to cover
such delays. Should the Publisher fail to publish the Work before the
expiration of said period, except as provided herein, its failure to do so
shall be deemed cause for the Author, if he so desires, to terminate this
Agreement.
7. Advertising and Promotion
A. The Publisher shall have the right to use,
and to license others to use, the
Author’s name, image, likeness and
biographical material for advertising, promotion, and other exploitation of the
Work and the other rights granted under this Agreement provided the Publisher
has obtained the Author’s approval which shall not be unreasonably withheld to
said use and exploitation.
B. The Publisher shall have the right to determine
the time, place, method and manner of advertising, promotion and other
exploitation of the Work provided the Publisher has consulted with the Author,
and provided that for any exploitation requiring the Author’s presence the
Author’s approval, which shall not be unreasonably withheld, shall be obtained.
8.
Subsidiary Rights
Additional rights which the Author grants to
the Publisher in the languages and within the territories specified above are:
• Reprint of the entire Work and of selections
and shortened versions in anthologies and other volumes;
• first serial rights and reprint of selections
and shortened versions in any magazine or newspaper;
• second serial rights and reprint of
selections and shortened versions in any magazine or newspaper (provided these
rights have not been retained by the purchaser of the first serial rights);
• recording and photographic reproduction of
all or part of the text; dramatic (stage, radio, television, motion picture)
commercial visual and/or sound presentation, reproduction, recording;
• developing or licensing for use in all other
mechanical or electronic visual and sound reproducing rights of the Work now
known or later invented; and
• reproduction of the text for the physically
handicapped.
All sums accruing from the sale of the above
rights or materials produced under those rights shall be divided so that the
Author receives fifty percent (50%) of the net amount received. The Publisher
shall have the sole right to negotiate and sign contracts, in regard to these
rights, provided it has consulted with the Author. The Publisher may publish or
permit others to publish, free of charge, such brief selections as it thinks
proper to benefit the sale of the Work.
9.
Reserved
Rights
All rights in the Work now existing or which
may hereafter come into existence, except those hereby specifically granted to
the Publisher are reserved to and by the Author for Author’s use.
10.
Revision
If at any time while this Agreement continues
in force the Publisher deems the publication of a new edition or revision of
the Work desirable, it shall notify the Author, by letter. If the Author is
able and wishes to undertake the preparation of such a new edition, or
revision, he shall so inform the Publisher in writing within thirty (30) days
of receipt of said notice. Such new edition or revision, if undertaken by the
Author, shall contain such material as the Publisher and the Author agree to be
appropriate thereto, and the date of delivery of the manuscript thereof shall
also be established by mutual written agreement.
11.
Competing
Works
The Author agrees that during the existence of
this Agreement, Author will not prepare or cause to be prepared or published in
Author’s name or otherwise, any work that shall interfere with or injure the
sale or distribution of the Work herein specified.
12. Force Majeure
The failure of the Publisher to publish or
republish any of the Work shall not be deemed to be a violation of this
Agreement or give rise to any right of termination or reversion if such failure
is caused by restrictions of government agencies, labor disputes, or inability
to obtain the materials necessary for its manufacture, or occurs for any other
reason beyond the Publisher's control; and in the event of delay from any such
cause, the publication date or reissue may be postponed accordingly.
13.
Royalties
The Author shall receive a ____________advance
on royalties consisting of Dollars on
, 20__; Dollars upon Publisher's acceptance of
the manuscript, and
Dollars
upon the book's actual publication date.
Royalties
shall be paid to the Author as follows:
A.
A
royalty of six percent (____%) of the Publisher's net revenues for hardcover
copies sold of the Work, up to and including 10,000 copies; ____ percent (___%)
on hardcover copies sold of the Work, from 10,001 to 25,000 copies, and percent
(___%) on hardcover copies sold of the Work, from 25,001 to 50,000 copies, and
_____ percent (__%) on all copies sold thereafter. All royalties above shall be
reduced by one percent (1%) for any paperback editions sold. There shall be no
deduction for cash discounts or bad debts, except as provided below:
B.
A
royalty of [half of the beginning royalty in A above] percent (___%) of the
amount of the Publisher's net revenues for the net copies of the Work (less
returns, but with no deduction of cash discounts or bad debts), on copies,
either bound or unbound, sold as premiums, or otherwise in quantities to
organizations outside the regular bookselling channels, provided such sales are
made at a discount of sixty percent (60%) or more from the catalog retail
price;
C.
A
royalty of [half of the beginning royalty in A, above] percent (___%) of the
amount of the Publisher's net revenues for net copies sold of any edition of
the Work (less returns, but with no deduction for cash discounts or bad debts),
on copies of overstock which the Publisher, after one (1) year from the date of
first publication, deems it expedient to sell at remainder prices, i.e., at a
discount of seventy percent (70%) or more from the catalog retail price, except
when these are sold at or below cost, in which case no royalty shall be paid;
D.
Fifty
percent (50%) of Publisher's net revenues accruing to the Publisher from the
ceding by it to an English, Canadian, or other foreign publisher of the right
to publish the said Work on a royalty basis or for an outright sum, in the
English language or in any other language;
E.
Fifty
percent (50%) of all royalties accruing to the Publisher from the sale to
recognized book clubs of the right to publish an edition or editions of the
Work for distribution to members;
F.
Fifty
percent (50%) of all royalties accruing to the Publisher from the sale to
another publisher of the right to publish a cheap edition or editions of the
Work in the languages and within the territories specified in Clause 1A and 1B
above. No cheap edition may be published earlier than one (1) year from the
date of the original publication, except with the consent of the Author;
G.
“Net
copies sold” as used in this Agreement, means the sale less returns of any and
all copies sold by the Publisher through conventional channels of distribution
in the book trade, and does not include promotional and review copies, or
copies for which a royalty rate is otherwise set forth in this Agreement.
“Edition” as used in this Agreement, refers
to the Work as published in any particular content, length, and format. If the
Work is materially revised or redesigned in any manner, or expanded in length
or content, then the Work as revised shall be considered a new “Edition” for
purposes of this Section.
“Net revenues,” as used in this Agreement,
refers to funds received by the Publisher, for the sale of copies of the Work,
net of returns, after deduction of shipping, customs, insurance, currency
exchange discounts, and costs of collection.
14.
Statements & Payments
A. The Publisher agrees to render semi-annual
statements of account in duplicate and to make payments on or before April
first and October first of each year covering sales (less returns) to the
preceding
January
first and July first respectively.
B. In making accountings as provided in this
Clause 14, the Publisher shall have the right to allow for a reasonable reserve
against returns, not to exceed twenty percent (20%) of the amount due in each
accounting period. Any reserve against returns withheld in an accounting period
will be paid to the Author in the subsequent accounting period.
C. All other royalties or other sums accruing to
the Author in accordance with the provisions of this agreement shall be
reported as of the accounting periods in which the Publisher receives them.
D. Whenever the Author has received an
overpayment of monies under the terms of this agreement, the Publisher may
deduct the amount of this overpayment from any sums that may accrue to the
Author from any agreement with the Publisher.
E. The Publisher agrees to give to the Author on
publication ten (10) copies of the Work and to sell to Author further copies
for Author’s personal use, not for resale, at a discount of forty percent (40%)
from the catalogue retail price.
F. If the Author places an order with the Publisher
for 100 or more copies of the
Work
in advance of the first printing of the Work for Author’s personal use, then
the Publisher will sell Author these copies at a non-returnable discount of
fifty percent (50%) from the catalog retail price. The Author will be billed
for these copies, payable upon of Author’s receipt of them.
15.
Termination & Reversion of Rights
A.
If
at any time after the expiration of two (2) years from the date of first
publication the Publisher shall determine that there are not sufficient sales
of the Work to enable it to continue its publication and sale profitably, it
shall be privileged to dispose of the copies remaining on hand as it deems
best, subject to the provisions with regard to royalty set forth in Clause 13
of this agreement, provided that the Publisher first notifies the Author in
writing addressed to
Author’s last known address and offers to
Author an opportunity to purchase said copies at the Publisher's cost of paper,
printing and binding of said copies.
B.
If
the Work is out of print in the United States of America and if within ninety
(90) days of written demand upon the Publisher by the Author, the Publisher
does not agree to bring out a new printing within one (1) year, then upon
repayment of any overpayment of royalties or other sums due the Publisher this
agreement shall terminate without further notice. The Work shall be considered
in print if it is on sale by the Publisher or under license granted by the
Publisher as provided herein, or if any contract for its publication, granted
by the Publisher, is outstanding. In case of delays from causes beyond the
control of the Publisher, the period shall be extended to cover such delays.
C.
In
the event of bankruptcy or liquidation of the Publisher for any cause
whatsoever, the rights of publication shall revert to the Author upon payment
of fair market value to be determined by agreement or arbitration. Thereafter
this agreement shall thereupon terminate without notice.
D.
In
the event of termination of this agreement, the rights herein granted to the
Publisher shall revert to the Author. For thirty (30) days after such
termination the Author shall have the right to buy from the Publisher or its
successors in interest all copies on hand at the cost of manufacture, or the
plates and binder's dies, if any, at one-third (1/3) of their original cost of
production, or both. Thereupon the Publisher or its successors in interest
shall have the right to sell the remaining copies not purchased by the Author,
at the best price it can obtain therefor. Termination of this agreement shall
not deprive the Publisher of the right to receive its share of sums due from
licenses or contracts granted by the Publisher prior to termination nor relieve
Publisher of the obligation to pay to the Author royalties due on such sums.
16.
Notices
Any notice or other communication required,
or which may be given, pursuant to this Agreement, shall be in writing. Any
such notice shall be deemed delivered (i) on the day of delivery in person;
(ii) five (5) days after deposit in first class registered mail, with return
receipt requested; (iii) on the actual delivery date if deposited with an
overnight courier; or (iv) on the date sent by facsimile, if confirmed with a
copy sent contemporaneously by first class, certified, registered or express
mail; in each case properly posted and fully prepaid to the appropriate address
set forth below, or such other address as a party may provide notice of in
accordance with this section:
17.
Successors
and Assigns
This agreement shall be binding upon and
inure to the benefit of the executors, administrators, and assigns of the
Author and upon and to the successors and assigns of the Publisher.
18.
Term
of Agreement
Unless previously terminated as provided
herein, this agreement shall continue in force, with respect to copyright
obtained under the laws of any country covered by this agreement, for the term
of the original copyright, renewal, or extension thereof which relates to the
Work and which may accrue to the owner of the copyright under the present or
any future law of said country.
19.
Waivers
The failure of either party to exercise any
of its rights under this Agreement for a breach thereof shall not be deemed to
be a waiver of such rights, and no waiver by either party, whether written or
oral, express or implied, of any rights under or arising from this Agreement
shall be binding on any subsequent occasion; and no concession by either party
shall be treated as an implied modification of the Agreement unless
specifically agreed in writing.
20.
Amendments
No amendment of, addition to or modification
of this Agreement shall be effective unless reduced to writing and signed by
the parties hereto.
21.
Laws
Applicable
This Agreement shall be interpreted according
to the laws and statutes of the United States of America and of the State of
Maine, except that its conflicts of law provisions shall not apply. Any
litigation relating to this Agreement shall be pursued in the Superior Court,
State of Maine.
22.
Severability
In the event one or more clauses of this
Agreement are declared invalid, void, unenforceable or illegal, that shall not
affect the validity of the remaining portions of this Agreement.
23. Entire Agreement
This Agreement sets forth the entire
agreement of the parties, and replaces and supersedes any previous agreement
between the parties on the subject, whether oral or written, express or
implied.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement the day and year first above written and shall be
interpreted under the law.
Publisher Author By: By:
Name:
Name:
Title: Title:
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