Standard Contract - Boilerplate
This Publishing Agreement (“Agreement”) is entered into as of [Insert date here] (“Effective Date”) by and between James David, Inc. DBA Marshall Trumann Publishing, 3710 S. Calhoun St., Ft. Wayne, IN 46805 (“Publisher”), and [Insert name, address, Social Security number, date of birth, and citizenship of Author] (“Author”) concerning a work presently titled [Insert title here] (“Work”) and described as [Insert description of subject matter, length, etc.]
GRANT OF RIGHTS
1. Grant of Rights. Author, on behalf of him/herself and his/her heirs, executors, administrators, successors, and assigns, exclusively grants, assigns, and otherwise transfers to Publisher and its licensees, successors, and assigns, all right, title, and interest in and to the Work, throughout the world, in perpetuity, and in any and all media and forms of expressions now known or hereafter devised, including but not limited to all copyrights therein for the full term of such copyrights (and any and all extensions and renewals thereof), including but not limited to the following primary and secondary rights therein.
1.1 Primary Rights
1.1.1 “Hardcover Rights,” including the exclusive right to print, publish, distribute, sell, and generally exploit the Work, in the form of hardcover editions of the Work, distributed primarily through book trade channels such as bookstores and libraries.
1.1.2 “Trade Paperback Rights,” including the exclusive right to print, publish, distribute, sell and generally exploit the Work, in the form of “trade paperback” or “quality paperback” editions of the Work distributed through book trade channels such as bookstores and libraries.
1.1.3 “Mass-Market Paperback Rights,” including the exclusive right to print, publish, distribute, sell, and generally exploit the Work, whether as original editions or reprints, distributed primarily through the book trade, independent magazine wholesalers, direct accounts, and other customary channels of distribution.
1.1.4 “Translation Rights,” including the exclusive right to translate the Work, in whole or in part, into foreign languages, and to use, adapt, or otherwise exploit any and all of the rights in and to such translation(s) anywhere in the world.
1.1.5 “Periodical Publication Rights,” including the exclusive right to use and generally exploit all or any portion of the Work, in the form of excerpts, condensations, abridgments, or selections of the Work, in newspapers, magazines, and other periodicals, both in print and other media of publication, whether directly or through syndicates, either before (“First Serial Rights”) or after (“Second Serial Rights”) first publication of the Work in book form.
1.1.6 “Book Club Rights,” including the exclusive right to sell copies of the Work to book clubs, or to authorize book clubs to print and sell copies of the Work.
1.1.7 “Photocopying and Facsimile Rights,” including the exclusive right to grant or withhold permission for the duplication and transmission of all or part of the Work by photocopying, facsimile, or other like means.
1.1.8 “Microfilm Rights,” including the exclusive right to use, adapt, or otherwise exploit the Work, or any portion thereof, in the form of microfilm, microfiche, slide, transparencies, filmstrips, and like processes attaining similar results.
1.1.9 “General Print Publication Rights,” including the exclusive right to use and exploit all or any portion of the Work, in the form of condensed or abridged editions, bulk sale and other special sales, including but not limited to premium, promotional, corporate, and institutional sales; excerpts or selections of the Work in anthologies, compilations, digests, textbooks, and other similar works; Braille, large type, and other editions for the handicapped; book fairs; school editions and cheap editions; and unbound sheets.
1.1.10 “Direct-Response Marketing Rights,” including the exclusive right to sell copies of the Work in any edition or medium authorized under this Agreement, through any form of direct-response marketing, including but not limited to any form of television, electronic media, direct mail, and catalogs.
1.1.11 “Audio Rights,” including the exclusive right to adapt, use, or otherwise generally exploit the Work or any portion thereof in any form of sound recording and reproduction, including but not limited to audiocassettes, compact discs, digital media files, or other similar audio products of any kind or configuration whatsoever now known or hereafter devised, including but not limited to the following.
184.108.40.206 Unabridged Sound Recordings. The exclusive right to prepare and generally exploit unabridged non-dramatic sound recordings of the verbatim contents of the Work in its entirety without the addition of any material whatsoever.
220.127.116.11 Abridged Sound Recordings. The exclusive right to prepare and generally exploit abridged non-dramatic sound records of the contents of the Work, or any portion thereof, without the use of any other or additional material whatsoever except incidental musical interludes and spoken introductory and explanatory segments.
18.104.22.168 Dramatized Sound Recordings. The exclusive right to adapt and use the Work, or any portion thereof, in preparing and generally exploiting dramatized sound recordings of the Work, including scenes, dialogue, and additional material, whether based upon the Work or otherwise.
1.1.12 Electronic Rights,” including the exclusive right to use adapt, or otherwise exploit the Work or any portion thereof, alone or in conjunction with other matter, in computer-based and similar electronic and technologies for data entry, storage, retrieval, transmission, display, and output of any and all kinds, and/or like media and technologies attaining similar results, whether now known or hereafter devised. Without limiting the generality of the foregoing, “Electronic Rights” include but are not limited to electronic, digital, and computer-based media and technologies of all kinds, and the storage, retrieval, transmission, display, output, and reproduction of data through any such media and technologies, by way of example only, interactive media and multimedia in which the Work may be adapted and used in conjunction with other matter, whether such data is stored on hard drives or other fixed storage media, disks or diskettes, and other portable storage media, and/or remote on-line databases. “Electronic Rights,” as the term is used in this Agreement, include the following specific applications and uses of the Work in computer-based and similar electronic media and technologies for data entry, storage, retrieval, transmission, display, and output of any and all kinds, and/or like media and technologies, attaining similar results, whether now known or hereafter devised.
22.214.171.124 Electronic Books, including the exclusive right to use and generally exploit any and all content of the Work, but without the addition of any material whatsoever, in electronic versions of the Work that are reproduced in the form of portable storage media and offered for sale or license to the consumer.
126.96.36.199 Publishing-on-Demand, including the exclusive right to store, reproduce, transmit, and generally use and exploit any and all portions of the Work, but without the addition of any material whatsoever, in the form of “Publishing-on-Demand” products and services. By way of illustration only, and without limiting the generality of the foregoing, “Publishing-on-Demand” refers to the manufacture and sale of copies of the Work by means of storage, transmission, and output of the Work in which the end product is a single printed copy of the Work for sale to a consumer.
188.8.131.52 Databases, Networks, and On-line Services, including the exclusive right to store, reproduce, transmit, and generally use and exploit any and all potions of the Work, but without the addition of any matter whatsoever, in a remote electronic database, network, or other on-line computer service, or similar system attaining like results, for use by consumers who are licensed to access the database, network, or service, and display and\or download for their own personal use only.
184.108.40.206 Interactive and Multimedia, including the exclusive right to adapt and generally use and exploit any and all portions of the Work, whether alone or in conjunction other material, in an interactive or multimedia product or service in any of the media or technologies described above, whether now known or hereafter devised.
1.2 Secondary Rights
1.2.1 “Dramatic Rights,” including the exclusive right to use, adapt, or otherwise exploit the work or any element thereof (including but not limited to characters, plot, title, scenes, settings, attire, and physical characteristics) in one or more live theatrical or stage presentations.
1.2.2 “Reading Rights,” including the exclusive right to authorize the public reading of any and all portions of the verbatim text of the Work before a live audience, but without dramatization of any kind or the making of any audio, audiovisual, or other recording of the reading.
1.2.3 “Motion Picture and Television Rights,” including the exclusive right to use, adapt, or otherwise exploit the Work, or any element thereof (including but not limited to characters, plot, title, scenes, settings, attire, and physical characteristics) in the form of one or more motion pictures and/or television programs of any kind, including but not limited to the right to disseminate such motion pictures and/or television programs by means of distribution and exhibition in theaters or otherwise, broadcasting, cable, satellite, telephone or other land lines, pay-per-view, closed circuit, videocassettes, laser discs, digital video discs, and\or any other form of video transmission, exhibition, reproduction and sale, including but not limited to both analog and digital technologies and all other similar audiovisual media, whether now in existence or hereafter devised.
1.2.4 “Radio Rights,” including the exclusive right to use, adapt, or otherwise exploit the Work and any element thereof (including but not limited to characters, plot, title, scenes, settings, attire, and physical characteristics) for any form of radio programming, including but not limited to dissemination by broadcasting, cable, satellite, telephone or other land line, pay-per-view, digital, closed-circuit or other forms of radio transmission, whether now in existence or hereafter devised.
1.2.5 “Commercial Rights,” including the exclusive right to manufacture, sell and otherwise distribute products, by-products, services, facilities, merchandise, and other commodities of every nature or description, whether now in existence or hereafter devised, including but not limited to photographs, illustrations, drawings, posters, and other artwork, toys, games, wearing apparel, foods, beverages, cosmetics, toiletries and similar items, which may refer to and embody the Work, or any derivative works based on the Work, including but not limited to characters, plot, title, scenes, settings, attire, and physical characteristics.
1.2.6 “Future Media and Technologies,” including the right to disseminate, use, adapt, or otherwise exploit the Work, or to authorize others to do so, by any means or medium of communication now in existence or hereafter devised.
2. Territory. The rights granted to the Publisher by the Author in this Agreement may be exploited throughout the world.
3. Term. The rights granted to the Publisher by the Author in this Agreement may be exploited in perpetuity.
4. Royalties on Publisher’s Editions. For each copy of the Work published by Publisher under this agreement, Publisher shall credit Author’s account with a royalty equal to ten (10) percent of Net Revenues from the sale of any and all Net Copies Sold.
4.1 “Net Revenues,” as used in this Agreement, refers to money actually received by Publisher from the sale of copies of the Work, net of returns, after deduction of shipping, customs, insurance, fees and commissions, currency exchange discounts, and costs of collection.
4.2 “Net Copies Sold,” as used in this Agreement, means the sales less returns of any and all copies sold by Publisher through conventional channels of distribution in the book trade, and does not include promotional and review copies, Author’s copies (whether free or purchased by Author), or copies for which a royalty rate is otherwise set forth in this Agreement.
5. Reduced Royalties on Publisher’s Editions. For any and all sales of the Work in any Publisher’s Edition at discounts greater than the Publisher’s announced wholesale discounts in the book trade; nonreturnable sales; direct sales; export sales; and bulk, premium, and other special sales, Author’s royalty shall be one-half the full royalty rate for sales in ordinary channels of distribution. For any and all sales of the Work in any Publisher’s Edition directly to the author for professional use or resale, the Author’s royalty shall be zero.
6. Author’s Share of Revenue From Licensing of Rights. Publisher shall credit Author’s account with a royalty equal to Author’s share, as specified below, of all Net Revenues actually received by Publisher for the exploitation or disposition of any and all rights in the Work by third parties under license from the Publisher.
[Insert detailed list of royalties.]
7. Delivery of Manuscript. Author agrees to deliver the manuscript of the Work in the English language in its entirety (“The Manuscript”) to the Publisher not later than [Insert date of manuscript delivery] (“the Initial Delivery Date”) in the form of (a) a computer-readable file stored on one or more disks in such formats and word-processing program(s) as Publisher may specify, and (b) two (2) computer-generated printouts of the Work, double-spaced on 8½-by-11-inch white paper, which Manuscript shall be approximately [Insert word or page count] in length and shall otherwise be acceptable to Publisher in form and content.
8. Artwork, Permissions, Index, and Other Materials. Author shall deliver to Publisher, at Author’s sole expense, not later than the Initial Delivery Date or other such date(s) as may be designated by Publisher, each of the following:
8.1 Original art, illustrations, maps, charts, photographs, or other artwork (collectively “Artwork”), in a form suitable for reproduction.
8.2 An index, bibliography, table of contents, foreword, introduction, preface, or similar matter (“Frontmatter” and “Backmatter”).
8.3 Written authorizations and permissions for the use of any copyrighted or other proprietary materials (including but not limited to Artwork, Frontmatter, and Backmatter) 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 (collectively “Permissions”).
8.4 If Author fails or refuses to deliver the Artwork, Frontmatter, Backmatter, Permissions, or other material required to be delivered by Author under this Agreement, Publisher shall have the right, but not the obligation, to acquire or prepare any and all such matter, or to engage a skilled person to do so, and Author shall reimburse Publisher for all costs and expenses incurred by Publisher in doing so.
8.5 Author acknowledges and confirms that Publisher shall have no liability of any kind for the loss or destruction of the Manuscript, Artwork, Frontmatter, Backmatter, or any other documents or materials provided by Author to Publisher, and agrees to make and maintain copies of all such documents and materials for use in the event of such loss or destruction.
9. Publisher’s Rights on Delivery. If Publisher, in its sole discretion, deems the Manuscript, Artwork, Frontmatter, Backmatter, Permissions, or any other materials delivered by Author under this Agreement to be unacceptable in form or substance, then Publisher shall have the right to terminate this Agreement without further obligation to the Author.
10. Termination for Nondelivery or Unsatisfactory Delivery. If Author fails to deliver the Manuscript, Artwork, Frontmatter, Backmatter, Permissions, or other materials required under this Agreement, or any revisions and corrections thereof as requested by Publisher, on the dates designated by Publisher, or if Author fails to do so in a form or substance satisfactory to Publisher, then Publisher shall have the right to terminate this Agreement by so informing Author by letter sent by traceable mail to the address of Author set forth above. Upon termination by Publisher, Author shall, without prejudice to any other right or remedy of Publisher, immediately repay Publisher any sums previously paid to Author, and upon such repayment, all rights granted to Publisher under this Agreement shall revert to Author.
11. Publisher’s Right to Terminate Due to Changed Conditions. Publisher shall not be obligated to publish the Work, if, in its sole and absolute judgment, whether before or after acceptance of the Work, Publisher determines that supervising events or circumstances since the date of this Agreement have materially and adversely changed the economic expectations of the Publisher regarding the Work at the time of making this Agreement. Upon making such a determination Publisher shall have the right to terminate this Agreement by so informing Author by letter sent by traceable mail to the address of Author set forth above. Upon termination by Publisher, Author shall, without prejudice to any other right or remedy of Publisher, immediately repay Publisher any sums previously paid to Author, and upon such repayment, all rights granted to Publisher under this Agreement shall revert to Author.
12. Editing and Publication Format. Publisher shall have the right to edit and revise the Work for any and all uses contemplated under this Agreement, provided that the meaning of the Work is not materially altered, and shall have the right to make any changes in the Work as advised by Publisher's counsel. Publisher shall have the right, but not the obligation, to manufacture, distribute, advertise, promote, and publish the Work in a style and manner which Publisher deems appropriate, including typesetting, paper, printing, binding, cover and jacket design, imprint, title, and price. Notwithstanding any editorial changes or revisions by Publisher, Author’s warranties and indemnities under this Agreement shall remain in full force and effect.
13. Review by Publisher’s Counsel. Notwithstanding any other provisions of this Agreement, Publisher shall have the right, but not the obligation, to submit the Work for review by counsel of its choice to determine if the Work contains material which or may be unlawful, violates the rights of third parties, or violates the promises, warranties, and representations of Author set forth in this Agreement.
13.1 Publisher shall not be obligated to publish the Work if, in the sole opinion of Publisher or its counsel, there appears to be a risk of legal action or liability on account of any aspect of the Work.
13.2 If, in the opinion of Publisher or its counsel, the Work is determined to require additions, deletions, modifications, substantiation of facts, or other changes to avoid the risk of legal action or liability, then Author shall make all such changes at the direction of Publisher or its counsel.
13.3 If Author declines to make such changes, or if Publisher deems the changes made by Author to be insufficient, or if Publisher or its counsel shall deem that such changes will not eliminate the risk of legal action or liability, then Publisher shall have the right to terminate this Agreement without further obligation, and Author shall be obligated to repay all amounts advanced by Publisher. Upon such repayments by Author, all rights granted to Publisher shall revert to Author.
13.4 Nothing contained in this Agreement shall be deemed to impose on Publisher any obligation to review or verify the contents of the Work, or to affect in any way the promises, warranties, and representations of the Author and the duty of indemnification of Author, all of which shall continue to apply to the Work, whether or not the Work is changed at the request of of Publisher or Publisher’s counsel.
14. Proofs. Publisher shall furnish Author with a proof of the Work. Author agrees to read, correct, and return all page proofs within seven (7) calendar days of after receipt thereof. If any changes in the proof sheets or the printing plates (other than corrections of printer’s errors) are made at Author’s request or with Author’s consent, then the cost of such changes in excess of 5% of the cost of typesetting (exclusive of the cost of setting corrections) shall be paid by Author. If Author fails to return the corrected page proofs within the time set forth above, Publisher may publish the Work without Author’s approval of the page proofs.
15. Time of Publication. Publisher agree that the Work, if published, shall be published within twenty-four (24) hours of the Final Delivery Date, except as the date of publication may be extended by forces beyond Publisher’s control. The date of publication as designated by Publisher, but not later than the date of first delivery of bound volumes, shall be the “Publication Date” for all purposes under this Agreement.
16. Author’s Copies. Publisher shall provide Author with ten (10) copies, free of charge, of each edition of the Work published by Publisher. Author shall be permitted to purchase additional copies of the Work, at the normal dealer discount, to be paid upon receipt of Publisher’s invoice, for Author’s professional use at book-signings, lectures, media appearances, tradeshows, or other opportunities for resale.
17. Advertising and Promotion. Publisher shall have the right to determine the time, pace, method, and manner of advertising, promotion, and other exploitation of the Work, except as Author and Publisher may set forth in writing signed by both parties.
18. Use of Author’s Name and Likeness. Publisher shall have the right to use and license others to use, Author’s name, image, likeness, and biographical material for advertising, promotion, and other exploitation of the Work and other rights granted under this Agreement.
19. Revisions. Author agrees to revise the Work as Publisher may deem appropriate during the effective term of this Agreement. The provisions of this Agreement shall apply to each revision of the Work by Author, which shall be considered a separate work, except that the manuscript of each such revision shall be delivered to Publisher within a reasonable time after Publisher’s request for such revision.
19.1 If Author fails to provide the manuscript of a revision of the Work which is acceptable to Publisher, then Publisher shall have the right, but not the obligation, to make such revisions, or engage a skilled person to do so, and Author shall reimburse Publish for all its actual costs of making such revisions.
19.2 If Publisher engages one or more persons to make such revisions, then Publisher, in its sole discretion, may afford appropriate credit (including authorship or coauthorship credit) to such person(s).
20. Copyright Notice and Registration. Publisher shall, in all versions of the Work published by Publisher under this Agreement, place a notice of copyright in the name of Author in a form and place that Publisher reasonably believes to comply with the requirements of United States copyright law, and shall apply for registration of such copyright(s) in the name of Author in the United States Copyright Office. Publisher shall have the right to, but not the obligation, to apply for registration of copyright(s) in the Work as published by Publisher elsewhere in the world. Nothing contained in this section shall be construed as limiting, modifying, or otherwise affecting and of the rights granted to Publisher under this Agreement.
21. Additional Documents. Author shall execute and deliver to Publisher any and all documents which Publisher deems necessary or appropriate to evidence or effectuate the rights granted in this Agreement.
22. Copyright Infringement. If, at any time during the term of this Agreement, a claim shall arise for infringement or unfair competition as to any of the rights that are subject to 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, either or both parties 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 form 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, Publisher has no obligation to initiate litigation on such claims, and shall not be liable for any failure to do so.
23. Accounting. Publisher shall render to Author a statement of Net Units sold and Net Revenues from sale of Publisher’s edition and other exploitation and distribution of rights to the Work, and other credits and debits relating to the Work and the rights granted in this Agreement, and pay Author any amount(s) then owing, for each six-month accounting period, not later than thirty (30) days following the close of each such period.
23.1 As used herein, “Net Units” shall refer to copies of the Work in any Publisher’s edition actually sold and delivered, net of return, damaged or spoiled copies, and promotional and Author’s copies.
23.2 Publisher shall have the right to debit the account of Author for any overpayment of royalties, and any and all costs, charges, or expenses which Author is required to pay or reimburse Publisher under this Agreement, and any amounts owing to Publisher under any other agreement between Publisher and Author.
24. Reserve Against Returns. Publisher shall have the right to allow for a reasonable reserve against returns. If royalties have been paid on copies that are thereafter returned, then Publisher shall have the right to deduct the amount of such royalties on such returned copies from any future payments under this Agreement or any other agreement.
25. Agency. Author hereby authorizes and appoint [Insert name and address of Author’s literary agent or agency] (“Agent”) to act as Author’s agent in connection with this agreement, including but not limited to the disposition of any and all rights in the Work, any sequels to the Work, and any options to future work of the Author under this Agreement. Accordingly, Agent is hereby fully empowered to act on behalf of Author, to collect and receive any and all statements, notices, or other communications to Author in connection with this Agreement. Receipt of Agent of any such payments, statements, statements, notices, and other matter shall be a valid discharge of Publisher’s obligation to Author for such matters under this Agreement. This clause creates an agency coupled with an interest as between Author and Agent.
WARRANTIES, REPRESENTATIONS, AND INDEMNITIES
26. Author’s Representations and Warranties. Author represents and warrants to Publisher that: (i) the Work is not in the public domain; (ii) Author is the sole proprietor of the Work and has full power and authority, free of any rights of any nature whatsoever by any other person, to enter into this Agreement; (iii) the Work has not heretofore been published, in whole or in part, in any form; (iv) the Work does not, and if published will not, infringe upon any copyright, trademark, or any other intellectual property rights or other proprietary rights of any third party; (v) the Work contains no matter whatsoever that is obscene, libelous, violative of any third party’s right of privacy or publicity, or otherwise in contravention of law or the right of any third party; (vi) all statements of fact in the Work are true and based on diligent research; (vii) all advice and instruction in the Work is safe and sound, and is not negligent or defective in any manner; (viii) the Work, if biographical or “as told to” Author, is authentic and accurate; and (ix) Author will not hereafter enter into any agreement or understanding with and person or entity which might conflict with the rights granted to Publisher under this agreement.
27. Author’s Indemnity of Publisher. Author shall indemnify, defend, and hold harmless Publisher, its subsidiaries and affiliates, and their representative shareholders, officers, directors, employees, partners, associates, affiliates, join venturers, agents, and representatives, from any and all claims, debts, demands, suits, actions, proceedings, and/or prosecutions (“Claims”) based on allegations which, if true, would constitute a breach of any of the foregoing warranties and representations or any other obligation of Author under this Agreement, and any and all liabilities, losses, expenses, (including attorneys’ fees and costs) and damages in consequence thereof.
27.1 Each party to this Agreement shall give prompt notice in writing to the other party of any Claims.
27.2 In the event of any Claims, Publisher shall have the right to suspend payments otherwise due to Author under the terms of this Agreement as a security for Author obligations under this section.
27.3 Author’s warranties, representations, and indemnities as set forth in this Agreement shall extend to any person or entity against whom Claims are asserted by reason of the exploitation of the rights granted by Author in this Agreement, as if such warranties, representations, and indemnities were originally made to such third parties.
27.4 All warranties, representations, and indemnities shall survive the termination or expiration of this Agreement.
OPTIONS, NONCOMPETITION, AND OTHER RIGHTS AND RESTRICTIONS
28. Option on Author’s Next Work. Publisher shall have the right, but not the obligation, to acquire Author’s next book-length work of nonfiction on the same terms and condition set forth in this Agreement. Author shall submit a detailed outline and samples chapter of such work to Publisher before submitting the work to any other publisher, and Publisher shall have a period of thirty (30) days in which to review the submission and determine whether or not to exercise the option. The thirty (30)-day period shall not begin to run earlier than sixty (60) days after the publication of the Work. If Publisher declines to exercise its option, then Author may submit the work to other publishers or otherwise dispose of the work.
29. Author’s Next Work. Author acknowledges and agrees that the Work shall be Author’s next published work in book form, and Author shall not publish or permit the publication of any other work in book form prior to publication of the Work by Publisher under this Agreement.
30. Reservation of Rights. All rights in the Work are not expressly granted to Publisher under this Agreement are wholly and exclusively reserved to Author.
31. Author’s Noncompetition. During the duration of this Agreement, Author shall not prepare, publish, or participate in the preparation or publication of any competing work that is substantially similar to the Work or which is likely to injure the sales of the Work.
32. Title and Series Rights. Publisher reserves all rights in and to the title (including series title, if any), logotype, trademark, trade dress, format, and other features of the Work as published and promoted by Publisher. Publisher shall have the sole right to develop sequels or prequels, new or additional titles in a series, or related works using any and all such elements, and shall be free to commission or contract with any other person(s) for the preparation of such sequels, series, or related works.
CESSATION OF PUBLICATION
33. Remainders. If Publisher determines that there is not sufficient demand for the Work to enable it to continue its publication and sale profitably, the Publisher may dispose of the copies remaining on hand as it deems best. In such event, Author shall have the right, but not the obligation, within two (2) weeks of the giving of written notice by Publisher, to a single purchase of some or all of such copies at the best available price, and the purchase of film and plates at Publisher’s actual cost of manufacture. If Author declines to purchase such copies or other materials, Publisher may dispose of them and shall pay Author, in lieu of royalties and any other amounts otherwise payable under this Agreement, a sum equal to 5% of the amounts actually received by Publisher in excess of the cost of manufacture.
34. Reversion of Rights. If the Work goes out of print in all Publisher’s editions, Author shall have the right to request that Publisher reprint or cause a licensee to reprint the Work. Publisher shall have twelve (12) months after receipt of any such written request from Author to comply, unless prevented from doing so by circumstances beyond Publisher’s control. If Publisher declines to reprint the Work as described above, or if Publisher agrees to reprint the Work but fails to do so within the time allowed, the Author may terminate this Agreement upon sixty (60) days’ notice in writing. Upon such termination, all right granted under this Agreement, except the rights to dispose of existing stock, shall revert to Author, subject to all rights which may have been granted by Publisher to third parties under this Agreement, and Publisher shall have no further obligations or liabilities to Author except that Author’s earned royalties shall be paid when and as due. The Work shall not be deemed “out of print” within the meaning of this section so long as the Work is available for sale either from stock in Publisher’s, distributor’s, or licensee’s warehouse, or in regular sales channels.
35. Rights Surviving Termination. Upon the expiration or termination of this Agreement, any rights reverting to Author shall be subject to all licenses and grants of rights, and all warranties, representations, and indemnities of Author shall survive the expiration or termination of this Agreement.
36. Right to Withdraw Offer. Publisher shall have the right to withdraw its offer of agreement at any time prior to delivery of this Agreement to and the execution of this Agreement by Publisher.
37. Counterparts. this Agreement may be signed in counterparts, and if so, the counterparts bearing the signatures of all parties shall be deemed to constitute one binding agreement.
38. Advice of Counsel. Author acknowledges that Publisher has explained that he or she is entitled to seek the advice and counsel of an attorney or other counselor of Author’s choice before agreeing to the terms set forth in this Agreement, and Publisher has encouraged Author to do so. Author acknowledges that, in the event Author signs this Agreement without seeking the advice of an attorney or other counselor, it is because Author has decided to forego such advice and counsel.
39. Entire Agreement. Publisher and Author acknowledge that they have communicated with each other by letter, telephone, and/or in person in negotiating this Agreement. However, Author and Publisher acknowledge and agree that this Agreement supersedes and replaces all other communication between Author and Publisher, and represents the complete and entire agreement of Author and Publisher, and represents the complete and entire agreement of Author and Publisher regarding the Work.
40. Modification and Waiver. This Agreement may not be modified or altered except by a written instrument signed by the party to be charged. No waiver of any term or condition of this Agreement, or of any breach of this Agreement or any portion thereof, shall be deemed a waiver of any other term, condition, or breach of this Agreement or any portion thereof.
41. No Employment or Other Relationship. The parties acknowledge and agree that this Agreement is an arm’s-length transaction between independent and contracting parties, and no partnership, joint venture, trust, employer-employee relationship, or other legal relationship is created between them.
42. Multiple Authors. Whenever the term “Author” refers to more than person, such persons will be jointly and severally responsible for all duties, obligations, and covenants under this Agreement, and shall share equally in all royalties and other amounts to be paid under this Agreement, unless otherwise specified in writing signed by all parties.
43. Force Majeure. Publisher’s obligations under this Agreement shall be extended by a period equal to any period of force majeure that prevents Publisher from performing such obligations.
44. Notices. Any written notice or delivery under any of the provisions of this Agreement hall be deemed to have been properly made by delivery in person to Author, or by mailing via traceable mail to the address(es) set forth in the Recitals and General Provisions, except as the address(es) may be changed by notice in writing. Author and Publisher agree to accept service of process by mail at such addresses.
45. Binding on Successors. This Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of Author, and the successors, assigns, and licensees of Publisher, but no assignment by Author shall be made without prior written consent of Publisher.
46. Applicable Law. Regardless of the place of its physical execution, this Agreement shall be interpreted, construed, and governed in all respects by the laws of the state of Indiana.
47. Arbitration. If any dispute shall arise between Author and Publisher regarding this Agreement, such dispute shall be referred to binding private arbitration in Fort Wayne, Indiana, in accordance with the Rules of the American Arbitration Association, and any arbitration award shall be fully enforceable as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, the parties shall have the right to conduct reasonable discovery as permitted by the arbitrator(s) and the right to seek temporary, preliminary, and permanent injunctive relief in any court of competent jurisdiction during the pendency of the arbitration or to enforce the terms of the arbitration award.
48. Attorneys’ Fees. In any action on this agreement, including litigation and arbitration, the losing party shall pay all attorneys’ fees and costs incurred by the prevailing party.
49. Headings. Headings and footers are for convenience only and are not deemed to be part of this Agreement.
50. Signature Block.
IN WITNESS WHEREOF, Author and Publisher have executed this Agreement as of the Effective Date.
[Insert Full Name of Author] James David, Inc. DBA
Marshall Trumann Publishing
(Signature of AUTHOR) Title:_________________________