AGREEMENT MADE AS OF THIS ___ DAY OF ________ 2002 by and between ______________, _____________FILL IN ADDRESS (“you”) and Red Wheel/Weiser, LLC (the “Publisher”) with respect to a manuscript tentatively titled _______________ (the “Work”) and described as follows: _____________________
It is hereby understood and agreed as follows:
(a) You grant to the Publisher the exclusive right to publish the Work in the territory, which is [CHOOSE ONE world in all languages/the world in the English language/ the territories and languages set forth on Exhibit A to this Agreement] and to exercise rights to the Work set forth in paragraph 7.
(b) You agree that the Publisher may use all or parts of the Work for advertising or promotional purposes.
(c) You also grant to the Publisher the right to the use your name and likeness and/or biographical data in advertising and promotion for the Work. You also agree to assist in the marketing and promotion of the Work as may be reasonably requested by the Publisher.
(a) You will deliver the completed Work to the Publisher no later than _________ in one word-processed printout entirely double-spaced with ample margins, as well as on an acceptable computer disk. You understand that the Work must be acceptable to the Publisher in content and in form. Along with the Work you will also deliver photos, illustrations, and permissions for all work not written by you at your expense, and all materials shall be acceptable to the Publisher in content and in form. Permissions shall contain a grant of all rights granted in this Agreement. You shall keep backup copies of the disk and hard copy sent to the publisher.
(b) If the Publisher requests, you agree to deliver to the Publisher within a time period requested by the Publisher a complete word processed copy for an index to the Work (completely double-spaced, within entries as well as between entries), satisfactory to the Publisher in content and form. If the index is deemed unsatisfactory by the Publisher and you cannot correct the problems within a time limit set by the Publisher, or if you fail to deliver the index at the time requested, you agree to reimburse the Publisher for its costs in bringing the index to satisfactory condition or creating the index. Such costs shall be debited to your account unless the account contains insufficient funds, in which case you shall pay such costs within 30 days of receipt of Publisher’s invoice.
(c) If the Publisher finds the manuscript and/or other materials incomplete or otherwise unsatisfactory, but the Publisher believes satisfactory revision or rewriting is possible, the Publisher shall provide you with specific comments, and you agree to do such additional work as may be necessary to correct this condition to the satisfaction of the Publisher within a reasonable time period set by the Publisher. If you are unable to accomplish this for any reason, or if you fail to deliver the complete manuscript within 10 days of the delivery date set forth above, the Publisher may arrange for another party to revise the Work and any fees payable for such work shall be deducted from any sums due you under this Agreement.
(d) If you fail to deliver the Work on a timely basis or if the Publisher finds the Work unacceptable and not easily susceptible of satisfactory revision, or if the Publisher provides you with specific comments and you revise the Work, but the Publisher finds the Work unacceptable, the Publisher shall not be required to publish the Work and may terminate this Agreement. Upon termination, you shall immediately return any advance against royalties you have received.
The copyright for the Work will be in your name; the Publisher will register it after the Work is published.
4. Revisions and Author’s Corrections
The Publisher agrees to show one copy of the copyedited manuscript to you and you shall have ten days to return the manuscript to the Publisher with all necessary changes marked clearly and legibly. The Publisher also agrees to show one set of proofs and finished artwork to you. Any changes that you make at this point may be made only with the consent of the Publisher and must be limited to the substance of statements of fact and the corrections of typographical errors. Because of the high cost of handling, you agree to pay for changes (other than the correction of the printer’s or Publisher’s errors) in and to the proofs in excess of ten percent (10%) of the cost of composition of the Work. If you fail to return proofs within five days after having received notice that they are needed, the Publisher shall be free to proceed with publication of the Work. You also agree to reimburse the Publisher for all expenses caused by your changes in and to the illustrations after illustration copy satisfactory to the Publisher has been incorporated in the Publisher’s production planning and design.
(a) The Publisher shall publish the Work within 18 months of acceptance of the final manuscript. Publication shall be in such manner and style and at such price or prices as the Publisher may deem appropriate; advertising, number and destination of free copies and all details of manufacture, imprint, design, including cover design, distribution and promotion shall be at the sole discretion of the Publisher. If the Publisher fails to publish the Work or to cause the Work to be published within 18 month period for reasons other than first serialization, book club use, or the reasons described in Paragraph 15, and if at any time thereafter the Publisher receives written notice from you demanding publication, the Publisher shall, within sixty (60) days of its receipt of your written demand, either publish the Work or revert to you in writing all rights to the Work granted in this Agreement (subject to any outstanding licenses which shall be assigned to you, if permitted by the terms of such licenses) and you shall retain any advance payments made prior to such reversion as liquidated damages for the Publisher’s failure to publish the Work.
(b) The Publisher shall give to you ten (10) copies of the Publisher’s first edition of the Work upon first publication, and shall at your request, make available further copies at a discount of 50% from the Publisher’s retail price for the your own use.
In consideration for the grant of rights to the Work and the performance of your responsibilities under this Agreement, the Publisher shall pay to you the following royalties on sales, less returns of copies of the Work published by the Publisher:
(a) On all hardcover copies sold through ordinary channels of trade in the United States (except as otherwise provided below<MAKE SURE PERCENTAGES AND ESCALATIONS MATCH TERM SHEET.>
Retail price for royalty calculation purposes shall be the price shown on the Publisher’s invoices from which discounts are deducted to calculate the net amounts payable to the Publisher by its accounts and not the suggested customers’ price, if any.
(b) On all hardcover copies sold at discounts of 51% or more from the retail price (including copies sold at such discounts through ordinary channels of trade providing however that 51% shall not be the Publisher’s standard discount) and on all hardcover copies sold for export throughout the territory; 10% of the amounts received by the Publisher.
(c) On all paperback copies sold under the Publisher’s imprint through ordinary channels of trade within the United States (except as otherwise provided below);
(d) On all paperback copies sold under the Publisher’s imprint at discounts of 51% or more from the retail price (including copies sold at such discounts through ordinary channels of trade providing however that 51% shall not be the export discount throughout the territory); 10% of the amounts received by the Publisher.
(e) On all copies of any of the Publisher’s editions of the Work sold directly by the Publisher to the consumer in response to mail order campaigns sponsored by the Publisher; 5% of the retail price exclusive of shipping charges.
(f) On all copies sold as premiums, to book fairs or outside the ordinary channels of the book trade, 5% of the amounts received by the Publisher.
(g) On all bookclub or co-edition sales made on a royalty inclusive basis, 5% of the amounts received by the Publisher.
(h) No royalties shall be payable on copies furnished for review, promotion, sample and like purposes, or for any damaged or destroyed through any means whatsoever excepting copies supplied by the Publisher in payment for advertising;
(i) On all copies sold through remainder sales at more than cost of manufacture; 5% of the amounts received by the Publisher. No royalties will be due for any remaindered copies sold at less than the manufacturing cost. The Publisher will use its best efforts to give you notice of the Publisher’s intention to remainder copies of the Work and give you a reasonable opportunity to purchase copies at the best remainder price. The Publisher’s failure to do so shall not be considered a breach of this Agreement nor give you any cause for damages.
(j) Only copies sold under 6. (a), (b), (c), (d) shall be counted in determining the royalty escalations described in 6.(a) and 6.(c) respectively.
(k) The Publisher shall pay to you in advance and on account of all amounts which may become due to you under the provisions of this Agreement the sum of:
Payable as follows:
50% upon signature of contract with complete delivery of the manuscript acceptable to the Publisher in content and form
50% upon publication
<OTHER PAY OUT OPTIONS>
50% due on signature of contract
50% due on publication
50% due on signature of contract
50% due on delivery of the manuscript acceptable to the Publisher in content and form
1/3 due on signature of contract
1/3 due on delivery of manuscript acceptable to the Publisher in content and form
1/3 due upon publication
7. Subsidiary Rights
You also grant to the Publisher the exclusive right to sublicense publication rights in the Work and such other rights listed below in the Territory upon such terms, as it deems advisable. The net proceeds of such licenses shall be divided 50/50 between you and the Publisher and paid, less the amount of any advances then unearned, at the time of the next accounting: first serial (use of serializations, condensations, excerpts, digests, etc. in newspapers, magazines, periodicals or books, print or in other media before publication of the Work in book form in the relevant territory); second serial, as above, following book publication; book club publication; publication of editions for premium or special use or for direct sale to consumers through mail order; paperback reprint editions; hardcover reprint editions; English language and foreign language editions; Braille, large-type and other editions for the handicapped (the Publisher may also grant such rights to recognized non-profit organizations for the handicapped without charge, not exceeding 20% of the work and without payment to the Proprietor); non-dramatic audio and/or visual verbatim recordings of the Work in whole or part by whatever means made or transmitted, whether now in existence or hereafter invented, including but not limited to microfilm, microfiche, cassettes, tape, wire recording, photocopying, and non-exclusive public reading rights; electronic reproduction of the Work in whole or part, including but not limited to mechanical, electronic or other technologies such as microprocessors, computers of all kinds, information storage and processing of all kinds; CD-ROM and other compact disc media, digital media, interactive media and or multi-media, output and reproduction of any such media and technologies, whether by screen display, print out, direct-to-disk transfer, photo reproduction, photocopy or otherwise, and whether stored on hard drives, disks, diskettes, remote or on-line data bases, magnetic tape, or other computer media or technologies or like processes now known or hereafter devised; and commercial and merchandising rights such as the use of a title or character for greeting cards, clothing, calendars.
If the Publisher itself exercises any of the rights described above, the amounts payable to you for those rights shall be subject to mutual agreement, except for those rights for which specific provision is made in Paragraph 6. All rights not specifically granted in this agreement are reserved by you, subject to Paragraph 11.
(a) Following first publication of the Work by the Publisher, an accounting of all your earnings hereunder, accompanied by payment of any monies due, shall be rendered no later than March 1 and September 1 of each year for the periods ending the preceding November 30 and May 31, respectively. No payment for any accounting period shall be made until a sum equivalent of U.S. $100.00 has accrued to you.
(b) Upon written request, the Publisher shall furnish the following information as to any specific royalty period: the number of copies printed and bound in each printing of each edition; the number of copies distributed gratis; the number remaindered, destroyed or lost; and the cumulative total sales and disposals.
(c) If you receive an overpayment of royalty resulting from copies reported sold but subsequently returned, you agree to pay such amounts to the Publisher and those sums may be deducted by the Publisher from any further sums due you. Any sums owed by you to the Publisher, excluding unearned advances under another agreement, may be deducted from any sum due from the Publisher to you under this or any other agreement between you and the Publisher.
(d) Publisher will not request direct payment of an amount shown on a particular statement as an overpayment caused by returns earlier than one year following the date on which such statement is issued to allow for the possibility that such overpayment may be reduced by subsequent activity on the account.
(e) The Publisher may retain a reserve against returns from the amounts due you in any accounting period and the statement issued to you for any period for which such a reserve is held shall clearly indicate the amount of the reserve and the statement issued for the subsequent period shall clearly show how the amount previously held has been applied to your royalty account. The reserve for returns shall not exceed thirty (30)% of the total income received by the Publisher. It is not the intent of this provision that any particular amount be held for longer than the accounting period or that such a reserve shall be held in every accounting period; rather any reserve held shall be calculated with respect to each accounting rendered and any reserve shall be reasonably related to the Publisher’s reasonable expectation as to returns at the time any statement is prepared. Publisher shall provide, upon request, a detailed explanation of any reserve held.
9. Examination of Records
You or your duly authorized representative shall have the right, upon reasonable written notice, to examine the records of the Publisher as they relate to the Work during normal business hours and under such conditions as the Publisher may reasonably prescribe. If an error is discovered as a result of any such examination, the party in whose favor the error was made shall promptly pay to the other the amount of the error. Any such examination shall be at your expense unless errors of accounting in the Publisher’s favor amounting to 5% or more of the total sum paid to you hereunder shall be found, in which case the Publisher shall within thirty days of notification of error pay the amount of the error and contribute to the cost of the examination up to the amount of the error.
10. Author’s Warranty
(a) You represent and warrant you are the sole Author of the Work and sole and exclusive owner of the rights conveyed in this Agreement and that you have not previously assigned, pledged or otherwise encumbered those rights; that the Work is original; has never before been licensed for publication in whole or in part in any form in the Territory, does not infringe upon any copyright, contains no matter which is libelous, in violation of any right of privacy, harmful to the user or any third party so as to subject the Publisher to liability or otherwise contrary to law or upon any other proprietary or personal right; that the Work is not in the public domain in any country included in the Territory; that all permissions for artwork have been cleared and all permissions fees have been paid; and that you have full power to enter into this Agreement and to make the grants contained in it. You shall indemnify and hold the Publisher harmless from any loss, damage, expense (including reasonable attorney’s fees), recovery or judgment arising from or related to any breach which, if sustained would constitute a breach of any of the foregoing warranties. However, if any claim, demand, action or proceeding is successfully defended, dismissed or withdrawn, then your indemnity shall be limited to 50% of the costs and expenses (including attorney’s fees) incurred by the Publisher in the defense thereof.
(b) Either party shall, with reasonable promptness, apprise the other of any claim, demand, action or proceeding respecting the Work. The Publisher shall defend any such claim, demand, action or proceeding made against the Publisher with counsel of the Publisher’s selection and you shall fully cooperate with the Publisher in its conduct of the defense. You may join in the defense with counsel of your selection at your sole expense. The Publisher, if it deems advisable, and after consultation with you, shall have the right to make a settlement of any such claim, demand, action or proceeding made against it. Notwithstanding the foregoing, you may, in your sole discretion, undertake to hold the Publisher harmless from the further costs of defending any such claim, demand, action, or proceeding by providing such security as may be reasonably acceptable to the Publisher, in which event the Publisher shall not settle any such claim, demand, action or proceeding without your consent.
(c) In the event of any claim, demand, action or proceeding asserting or alleging any matter which, if established, would constitute a breach of any of your representations and warranties, the Publisher shall have the right to withhold a reasonable amount of payments due to you under the terms of this Agreement as security for your obligations as stated herein.
(d) The Publisher shall have the right to extend your representations, warranties and indemnities to third parties (including licensees of subsidiary rights granted to the Publisher herein) and you shall be liable thereon to the same extent as if such representations, warranties and indemnities were originally made to such third parties by you. The representations, warranties and indemnities set forth herein shall survive in the event this Agreement is terminated.
(e) The Publisher, at its own expense, reserves the right to submit the Work to its attorneys for review and recommendations. You agree to cooperate fully and to make such changes as are suggested by the Publisher in one or more meetings with you, your editor, Publisher’s counsel and such other persons as you and the Publisher feel appropriate at such meeting(s). No such changes shall affect your representations and warranties hereunder. If you fail to make such changes, the Publisher may cancel publication of the Work. In the event that the Publisher cancels publication for this reason, this Agreement shall be terminated by written notice to you and upon the Publisher’s written request, you shall repay all amounts advanced by the Publisher to you.
(f) In the event of any actual or threatened infringement of the copyright to the Work, the Publisher may employ such remedies, as it deems advisable to protect the copyright. You hereby authorize the Publisher to make you a co-plaintiff with the Publisher in any litigation that the Publisher may commence to protect the copyright. The Publisher shall bear the entire expense of such litigation. Any recovery there from shall be applied first to reimburse the Publisher for its expenses and the balance, if any, shall be divided between the Publisher and you as follows: that portion which is based on actual damages shall be divided in proportion to the losses from such infringements suffered by each and that portion which is based upon the infringers’ profits, statutory damages or punitive damages shall be divided equally. If the Publisher elects not to undertake any claim, you may do so, at your own expense, and any recovery will belong to you.
(a) You agree that the Work shall be your next book, and that you shall not undertake any obligations which would interfere with your obligations under this Agreement.
(b) You shall not publish, or cause or permit to be published, any book on the same or similar subject matter as the Work that would compete with or affect prejudicially the sales of the Work or the exploitation of any rights or subsidiary rights in the Work granted to the Publisher under this Agreement.
(c) You shall not license or otherwise dispose of any rights competing with the rights granted to the Publisher herein or without reserving to the Publisher the rights granted in this Agreement.
12. Revised Editions
You agree to revise the first and subsequent editions of the Work and to supply any new matter necessary from time to time to keep the Work salable, as may be desired by the Publisher and within a time period set by the Publisher. If you fail to fulfill this clause to the satisfaction of the Publisher, the Publisher may engage some other person or persons to revise or to supply new matter and may deduct the expense thereof in an amount which the Publisher will determine from any royalties accruing to you on such revised or extended editions, it being understood that if such revision or extension are not made by you the Publisher will cause such fact to be evident in the revised or extended editions. In determining the applicable royalty rate, only sales of copies of such revised edition shall be included. The provisions of Paragraph 4 with respect to proofs shall apply to revised editions.
13. Option on Future Works
The Publisher shall have the first opportunity to read and consider for publication your next work in manuscript or proposal form with adequate sample material included for the Publisher to reasonably consider the material. The Publisher shall notify you within three months of receipt of the manuscript or proposal, whether it is interested in publishing the next work and upon what terms, except that the Publisher shall not be required to consider the option Work until two months after the publication of the Work which is the subject of this Agreement. If the Publisher wishes to publish the next work and you agree upon terms the new work shall be the subject of a separate agreement; if the Publisher is not interested in publishing the next work, you shall be free to offer it elsewhere; if the Publisher and you fail to agree on terms after a reasonable period of negotiation, you shall be free to enter into an agreement with another publisher provided that you shall not accept financial terms less favorable than are offered by the Publisher without first offering the work to the Publisher on those same terms.
14. Termination and Reversion of Rights
(a) If at any time after the expiration of twenty four (24) months from the date of first publication the Publisher shall determine that there is not sufficient sale for the Work to enable it to continue its publication and sale profitably, it may dispose of the copies remaining on hand as it deems best, subject to the royalty provisions in this agreement. The Publisher will use reasonable efforts to offer such copies for sale to you at the best remainder price. Failure to do so will not be deemed a breach of this Agreement nor give rise to any claim for damages.
(b) If the Work shall be out of print and the Publisher receives a written request for a reversion of rights, the Publisher shall within ninety (90) days of its receipt of such request do one of the following: (1) declare in writing its intention to reissue an edition of the Work under one of its imprints; or (2) enter a license providing for the publication in the United States of a new edition of the Work; or (3) revert in writing to you the rights granted to the Publisher herein. If the Publisher declares its intention to reissue the Work and does not do so within six (6) months from the date of its receipt of a request for reversion, or does not enter into a license providing for publication within 18 months of the date of the license, all rights granted to the Publisher herein shall automatically revert to you. Any reversion pursuant to this Paragraph shall be subject to any grant of rights made to third parties prior to the date of the reversion and the right of you and the Publisher to participate in the proceeds there from.
(c) The Work shall be deemed out-of-print if no edition is available in the United States from the Publisher or a licensee of the Publisher and there is no license in effect which provides for the publication or reissue of an edition of the Work in the United States within 12 months from the date of the notice.
(d) Notwithstanding anything in this Agreement to the contrary, the rights granted to the Publisher shall not revert if you owe any moneys to the Publisher other than an unearned advance.
15. The failure of the Publisher to publish or reissue 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 governmental 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.
16. The Publisher shall not be responsible for the loss or damage to any materials submitted by you except in the event of its gross negligence. The Publisher is not obligated to insure the manuscript copy, illustrative copy or any other materials used in connection with the publication of the Work against physical harm such as loss, damage, theft, full or partial destruction, and shall be liable only for gross negligence in the care thereof.
17. No advertisements (other than advertisements for other publications of the Publisher thereof) shall be included in any edition of the Work published by or under license from the Publisher without your consent.
18. (a) If the Publisher is required by law to withhold and pay any U.S. or foreign government taxing authority any portion of amounts due you hereunder, such payments shall be deducted from the net amounts due you hereunder.
(b) If any foreign taxes, bank charges or agents’ commissions are imposed on any payments due the Publisher from the exercise of any right granted herein, the appropriate allocation of proceeds between the Publisher and you from the exercise of such right shall be made on the amount received after such charges have been paid.
19. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators and assigns of you and the successors and assigns of the Publisher. Neither party hereto may make any assignment of this Agreement without the prior written approval of the other. However, that the sale of substantially all of the assets of the Publisher or any one of its imprints or lists, or its acquisition by or merger into another company, shall not be deemed an assignment of this Agreement by the Publisher.
20. This Agreement contains the entire understanding of you and the Publisher with reference to the Work; there are no representations, covenants or warranties other than those expressly set forth herein. No waiver or modification of any of the terms hereof shall be valid unless in writing and signed by both parties. No waiver of any breach shall be deemed a waiver of any subsequent breach.
21. Regardless of the place of its physical execution or performance, the provisions of this Agreement shall in all respects be construed according to, and the rights and liabilities of the parties hereto shall in all respects be governed by the laws of the Massachusetts. All unresolved disputes for arbitration arising directly or indirectly from this Agreement shall be notified in writing and submitted to arbitration in Massachusetts under the Rules of the American Arbitration Association. The outcome of arbitration shall be binding on both parties.
22. This Agreement shall be of no force and effect unless signed by both parties within sixty (60) days of the date first written above.
All notices, accounting reports and other communications under this Agreement will be in writing and will be considered given when personally delivered or five days after mailed by prepaid certified or registered mail, return receipt requested to the addresses set forth at the beginning of this Agreement.
In witness hereof, the parties have signed this Agreement on the date first mentioned above.
DATE OF BIRTH_______________________________________
AUTHOR’S SOCIAL SECURITY NUMBER____________________