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EXHIBIT 10.62
Publishing Agreement
DOVE BOOKS
A DOVE AUDIO, INC. LABEL
(the "Publisher")
and
("Author")
agree:
FIRST: The Author
A. shall deliver to the Publisher the literary work now entitled "" (hereinafter
referred to as the "Literary Work") on "" in Final Form on an IBM or Macintosh
compatible computer diskette with two double-spaced copies of the corresponding
hard copy). The Literary Work, containing 200 entries shall be a guided tour to
celebrity homes organized by neighborhood throughout the Los Angeles area. The
final manuscript shall be approximately 250 typeset pages.
B. makes the warranties and representations set forth in Part Two Paragraphs
36-45 of the Basic Agreement;
C. grants and assigns to the Publisher:
(i) all primary rights; and
(ii) the shares provided in THIRD: A of this Publishing Agreement
of the proceeds on disposition of the secondary rights; and
D. grants the Publisher the first opportunity to consider the Author's next
(i.e., written after the Literary Work) full-length work for publication on
mutually satisfactory terms. If, within 60 days following submission of the
final manuscript of such work to the Publisher, or within 60 days after
publication of the Literary Work, whichever shall be later, Publisher and Author
are unable in good faith to agree upon terms for publication, the Author shall
be free thereafter to submit such next work to other publishers, provided,
however, that the Publisher shall retain
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the first option of publishing such work on terms no less favorable to the
Author than those offered by any other publisher. During the period of this
option, Author shall not submit such next work to other publishers, nor seek
offers from or negotiate with others with respect thereto.
SECOND: The Publisher
A. shall publish the Literary Work in book form within 24 months
after acceptance of the manuscript therefore;
B. shall pay the Author, as an advance and on account of all
monies accruing to Author, "" USD
"" paid within thirty (30) days of full execution of this
Agreement;
"" paid within thirty (30) days of delivery and acceptance of the
complete and final draft of the manuscript.
(i) royalties at the following rates, based on Dove's suggested
retail price of every copy sold in the United States, less returns for sales of
the trade hardcover edition. The term "net receipts" shall mean all sums
actually received by Publisher from sales, less any commissions to distributors
or sales agents incurred by Publisher in making such sales.
10% of the suggested retail price of copies 1-5,000 sold; 12 1/2% of
the suggested retail price of copies 5,001-10,000 sold; 15% of the suggested
retail price of all copies sold thereafter.
(ii) royalties at the following rates, based on Publisher's suggested
retail price of every copy sold in the United States, less returns for sales of
the trade paperback and mass market editions. The term "net receipts" shall mean
all sums actually received by Publisher from sales, less any commissions to
distributors or sales agents incurred by Publisher in making such sales.
7 1/2% of the suggested retail price of all trade paperback copies
sold; 8% of the suggested retail price of all mass market paperback copies sold.
(iii) 50% of the proceeds on disposition of the other primary rights,
except as otherwise provided herein; and
(iv) in accordance with the provisions in Part Five of the Basic
Agreement, for sales by mail order, at special discount, for export or outside
the United States, as unbound sheets, from reduced printings, to book clubs, or
as excess stock, or for any
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textbook, large print or hardcover reprint editions, on calendars and on
Publisher's exercise of commercial rights, on electronic, audio or video
editions of the Literary Work published by the Publisher itself or under one of
its own imprints.
THIRD: The Publisher and the Author
A. shall share the proceeds on disposition of the secondary
rights, except as otherwise provided herein, as follows:
Dramatic Rights 50% to Author 50% to Publisher
Motion Picture Rights 50% to Author 50% to Publisher
Radio Rights 50% to Author 50% to Publisher
Television Rights 50% to Author 50% to Publisher
First Periodical Rights 50% to Author 50% to Publisher
Commercial Rights 50% to Author 50% to Publisher
British Commonwealth
Rights 50% to Author 50% to Publisher
B. shall be bound by all of the terms and conditions of the Basic Agreement
which follows and which is made an integral part of this Publishing Agreement;
and
Author: DOVE ENTERTAINMENT, INC.
_________________________ By_________________________
Xxx Xxxxxxxxxx
FID# or SS#______________
Citizenship______________
Dated____________________
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Basic Agreement
PART ONE
Definition of Terms
As used in this Basic Agreement and in the Publishing Agreement:
Primary Rights
1. "Primary rights" shall mean all of the rights defined in Part One
Paragraphs 2 through 14 inclusive. The territory within which such rights are
exercisable is set forth in Part Three Paragraph 46.
Trade Edition Rights, Trade Editions
2. "Trade edition rights" shall mean the exclusive right to publish,
or authorize others to publish, trade editions of the Literary Work referred to
in the Publishing Agreement. "Trade Editions" shall mean the first edition of
the Literary Work in hardcover book form, and all other editions in book form
except those referred to in the following paragraphs.
Book Club Rights
3. "Book club rights" shall mean the exclusive right to authorize
book clubs to print and sell the Literary Work in book form.
Mass Market and Trade Paperback Rights
4. (a) "Mass market paperback rights" shall mean the exclusive right,
after the publication of the first trade edition, to authorize others (not
including book clubs) to publish paperback editions of the Literary Work in
formats known in the publishing industry as designed primarily for mass market
distribution through such channels as chain store outlets and news and magazine
wholesalers.
(b) "Trade paperback rights" shall mean the exclusive right to
publish, or authorize others to publish, paperback editions of the Literary Work
in formats known in the publishing industry as designed primarily for
distribution through book
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trade channels.
Calendar Rights
5. "Calendar rights" shall mean the exclusive right to use, or to
authorize others to use, all or any portion of the Literary Work as the basis
for one or more calendars, which may include solely text and/or illustrations
from the Literary Work with text and/or illustrations from other works.
Textbook Rights
6. "Textbook rights" shall mean the exclusive right to publish, or to
authorize others to publish, the Literary Work or any portion thereof in
textbook form for distribution to or use in educational or other similar
institutions.
Permissions
7. "Permissions" shall mean the exclusive right, after publication of
the trade edition, to reproduce, or to authorize others to reproduce, portions
of the Literary Work, including, without limitation, selections from, parts of,
and/or photographs, charts, maps, drawings, index, illustrations and other
illustrative or decorative material from the Literary Work, to the extent that
the Publisher deems appropriate. Publisher may authorize copyright and
permissions clearance organizations to act in full or in part on its behalf and
Publisher shall account to the Author for royalties received from such
organizations designated as arising from reproduction of the Literary Work.
Abridgment or Condensation Rights
8. "Abridgment or condensation rights" shall mean the exclusive right
to publish, or to authorize others to publish, either as part of a book (as
distinguished from a periodical), or as a separate book publication, an
abbreviated version of the Literary Work, not exceeding two-thirds of the
original version in length, all of which must be (i) in the original text, if it
is an abridgment, or (ii) approved in writing by the Author, if it is a
condensation.
Second Periodical Rights
9. "Second periodical rights" shall mean the exclusive right to
publish all or part of the Literary Work in a periodical (including a magazine
or newspaper), serially or in one issue, after publication of the trade edition
of the Literary Work.
Transcription Rights
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10. "Transcription rights" shall mean the exclusive right to use the
Literary Work, or any portion thereof, as a basis for phonographic, tape, wire,
magnetic, electronic, light wave amplification, photographic, microfilm,
microfiche, slides, filmstrips, transparencies, programming for any method of
information storage, reproduction or retrieval, and for any other forms or means
of copying, recording, storage or retrieval (now known or hereafter devised) the
text of the Literary Work, including recordings made for the blind, but
excluding any uses encompassed in the electronic rights.
Electronic Rights
11. "Electronic rights" shall mean the sole and exclusive right to
use or adapt, and to authorize others to use or adapt, the Literary Work or any
portion thereof, for one or more "electronic versions." As used herein, the term
"electronic versions" shall mean any and all methods of copying, recording,
storage, retrieval or transmission of all or any portion of the Literary Work,
alone or in combination with other works, including in any multimedia work or
electronic book, by any electronic, electromagnetic or other means now known or
hereafter devised, including, without limitation, by analog or digital signal,
whether in sequential or non-sequential order, on any and all physical media now
known or hereafter devised including, without limitation, magnetic tape, floppy
disks, interactive CD, CD-ROM, laser disk, optical disk, integrated circuit card
or chip and any other human or machine readable medium, whether or not
permanently affixed in such media, and the broadcast of transmission thereof by
any means now known or hereafter devised, but excluding audio recording rights,
video recording rights and all uses encompassed in the definitions of motion
picture rights and television rights (provided that the exercise of any of the
foregoing rights, if reserved herein by the Author or licensed to any third
party, shall not preclude the exercise of electronic rights).
Audio and Video Rights
12. (a) "Audio rights" shall mean the exclusive right to use or
adapt, and to authorize others to use or adapt, the Literary Work or any portion
thereof as the basis for one or more non- dramatic audio recordings.
(b) "Video rights" shall mean the exclusive right to use or
adapt, and to authorize others to use or adapt, the Literary Work or any portion
thereof as the basis for one or more non-dramatic video recordings.
Digest Rights
13. "Digest rights" shall mean the exclusive right to
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publish, or to authorize others to publish, in any magazine whether devoted
exclusively to abbreviated versions, or consisting primarily of other material -
an abbreviated version (abridged or condensed) of the Literary Work, which
version shall be complete in one issue and shall not exceed approximately 30,000
works or one-half of the length of the Literary Work, whichever is less.
Other Publishing Rights
14. "Other publishing rights" shall mean all publishing rights not
specifically enumerated herein, whether now in existence of hereafter coming
into existence.
Secondary Rights
15. "Secondary rights" shall mean all the rights defined in Part One
Paragraphs 16 through 23 inclusive. The territory within which such rights are
exercisable is set forth in Part Three Paragraph 47.
Dramatic Rights
16. "Dramatic rights" shall mean the exclusive right to use, or to
authorize others to use, the Literary Work, title, plot, episodes, events,
scenes and characters depicted therein, in whole or in part, for (i) writing a
dramatic version thereof, or a drama in any way based thereon and (ii) producing
or performing either of the above on the stage.
Motion Picture Rights
17. "Motion picture rights" shall mean the exclusive right to use, or
to authorize others to use, the Literary Work, title, plot, episodes, events,
scenes and characters depicted therein, in whole or in part, for the purpose of
making motion pictures primarily for exhibition in regular commercial channels,
and shall include the allied motion picture rights. "Allied motion picture
rights" shall mean (i) the exclusive right to condense, or to authorize others
to condense, the Literary Work, or the commercial motion picture treatment
thereof, into not more than 7,500 words, for the purpose of promoting motion
pictures based upon the Literary Work, and (ii) such limited radio or television
rights as are customarily granted for the purpose of using those mediums to
promote motion pictures based on the Literary Work.
18. DELETED
Radio Rights
19. "Radio rights" shall mean the exclusive right to use, or to
authorize others to use, the Literary Work, title, plot,
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episodes, events, scenes and characters depicted therein, in whole or in part,
for AM, FM or other broadcasting.
Television Rights
20. "Television rights" shall mean the exclusive right to use or to
authorize others to use, the Literary Work, title, plot, episodes, events,
scenes and characters depicted therein, in whole or in part, for broadcast
performances on television.
First Periodical Rights
21. "First periodical rights" shall mean the exclusive right to
publish, or authorize others to publish, all or part of the Literary Work in a
periodical (including a magazine or newspaper), serially or in one issue, before
publication of the trade edition of the Literary Work.
Commercial Rights
22. "Commercial rights" shall mean the exclusive right to use, or to
authorize others to use, in whole or in part, the Literary Work, the title of
the Literary Work, and the names and characterizations of characters created in
the Literary Work, as a basis for (i) trademarks or trade names for other
products, or (ii) toys or games.
Foreign Language Rights and British Commonwealth Rights
23. (a) "Foreign language rights" shall mean the exclusive right to
translate or to authorize others to translate the Literary Work in whole or in
part into one or more foreign languages, and to publish, or to authorize others
to publish, such translations in any part of the world.
(b) "British Commonwealth rights" shall mean the exclusive right
to publish and to authorize others to publish the Literary Work in whole or in
part in the English language in the British Commonwealth as defined by Publisher
at the date of this agreement, excluding Canada and Israel.
(c) Whichever party controls foreign language or British
Commonwealth rights in the Literary Work shall control all publishing rights
thereto as well as non-publishing primary rights. Non-publishing secondary
rights shall in all instances be controlled by the party who is otherwise
authorized to dispose of such rights pursuant to this agreement.
Author's Unshared Secondary Rights
24. "Author's unshared secondary rights" shall mean all secondary
rights as to which, under Part THIRD: A of the
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Publishing Agreement, the Author is to retain all the proceeds from disposition.
Shared Secondary Rights
25. "Shared secondary rights" shall mean all secondary rights as to
which, under Part THIRD: A of the Publishing Agreement, the Author and the
Publisher are to share the proceeds from disposition.
Sale, Disposition or Grant of Rights
26. A "sale", "disposition" or "grant" of rights shall include an
assignment, transfer, bargain or license of the rights referred to or of any
interest or option relating to such rights.
Proceeds on Disposition of Primary Rights
27. "Proceeds on disposition of the primary rights" shall mean the
gross amount received on the sale or disposition of such primary rights, less
any costs and expenses incurred by the Publisher in connection with or by reason
of such sale or disposition.
Proceeds on Disposition of Secondary Rights
28. "Proceeds on disposition of the secondary rights" shall mean the
gross amount received from the sale or disposition of such secondary rights,
less any third party commission which may be paid for services rendered in
connection with such disposition, either to the Author's agent designated in the
Publishing Agreement or to any agent authorized by the Publisher to dispose of
such secondary rights, and less any bank fees or other monetary transfer charges
incurred by the Publisher or Author in connection with or by reason of such sale
or disposition.
Final Form
29. "Final Form" shall mean a complete, legible, typewritten
manuscript of the Literary Work (including photographs, charts, maps, drawings
or index, if any of these are required), or, if Publisher requests, diskettes or
other electronic format specified by Publisher containing the Literary Work,
acceptable to the Publisher in content and form.
Agreed Publication Date
30. "Agreed publication date" shall mean the date on which the
Publisher has agreed in the Publishing Agreement to publish the Literary Work.
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Actual Publication Date
31. "Actual publication date" shall mean the date of the first sale
and shipment of the Literary Work.
Base Royalty Rate
32. "Base royalty rate" shall mean the royalty rates provided in Part
Second: B(i) and (ii) of the Publishing Agreement.
Mail Order Sales
33. "Mail order sales" shall mean sales of the Literary Work directly
to the consumer through mail order coupon advertising, direct-by-mail
solicitation, or other direct response sales employing the mails.
Special Discount Sales
34. "Special discount sales" shall mean sales made in the United
States outside regular trade channels at a discount of more than 50% from the
catalog retail price. Sales to book clubs shall not be included under special
discount sales.
Agreement
35. "Agreement (or "this agreement") shall mean the Publishing
Agreement and this Basic Agreement.
Part Two
Author's Warranties
The Author warrants and represents that:
Sole Author and Proprietor
36. Author is the sole author and proprietor of the Literary Work.
Authority to Grant
37. Author has full power and authority to make this agreement and to
grant the rights granted hereunder, and Author has not previously assigned,
transferred or otherwise encumbered the same; and Author has no prior agreement,
commitment, or other arrangement, oral or written, to write or participate in
writing any other book-length work and will enter into no such agreement,
commitment, or other agreement until after delivery of the manuscript of the
Literary Work in Final Form.
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Not Previously Published, Not in Public Domain
38. The Literary Work is wholly original, has not been previously
published, and is not in the public domain.
No Infringement
39. The Literary Work does not infringe any statutory or common law
copyright or any proprietary right of any third party.
Not Libelous
40. The Literary Work does not invade the right of privacy of any
third person, or contain any matter libelous or otherwise in contravention of
the rights of any third person, and, if the Literary Work is not a work of
fiction, all statements in the Literary Work asserted as facts are true or are
based upon reasonable research for accuracy.
Not Unlawful
41. (a) The Literary Work contains no matter which is obscene or
matter the publication or sale whereof otherwise violates any federal or state
statute or regulation, nor does Author's entering into this agreement violate
any such statute or regulation, nor is the Literary Work in any other manner
unlawful.
Not Injurious
41. (b) Nothing contained in the Literary Work shall be
injurious to the health of the user.
Permissions
41. (c) If the Author incorporates in the Literary Work any writings,
drawings, photographs or other material either previously published or not,
either by the Author or another artist or writer, Author shall, prior to
delivery of the Literary Work in Final Form obtain and, whenever requested by
Publisher, deliver to the Publisher proper and complete written permission and
authorization from the owner of the common law or statutory copyright or other
right to use the same in the Literary Work and for the purpose of promoting or
advertising the Literary Work throughout the world.
Next Work
42. The Literary Work will be the Author's next book (whether under
the Author's own name or otherwise). The Author agrees that he or she will not
undertake to write any other work for publication in book form before delivery
to the Publisher of
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the manuscript of the Literary Work in Final Form, and that in no event will he
or she publish or authorize publication of any other book-length work of which
he or she is an author or co- author until six months after publication of the
Literary Work.
Investigation by Publisher
43. The Publisher shall be under no obligation to make an independent
investigation to determine whether the foregoing warranties and representations
are true and correct; and any independent investigation by or for the Publisher,
or its failure to investigate, shall not constitute a defense to the Author in
any action based upon a breach of any of the foregoing warranties.
Effect of Warranties and Representations
44. The warranties and representations of Author hereunder are true
on the date of execution of this agreement and shall be true of the date of
actual publication of the Literary Work, and at all intervening times. The
Publisher may rely on the truth of the warranties and representations herein in
dealings with any third party in connection with the exercise or disposition of
any rights in the Literary Work.
Warranties to Survive Termination
45. Each of the foregoing warranties and representations shall
survive the termination of this agreement.
PART THREE
Extent of Grant
Territorial Extent of Primary Rights
46. Under the grant of primary rights, the Publisher and its grantees
shall have:
(a) the exclusive right of publication throughout the world in the
English language under its own name and under various trade names and imprints;
and
(b) the non-exclusive right to sell or authorize others to sell
Publisher's edition of the Literary Work in Australia if no other English
language edition is for sale in Australia within 30 days after first English
language publication in accordance with the provisions of the Australian
Copyright Amendment Act of 1991. The Author shall advise Publisher immediately
following Author's disposition of Australian rights in the Literary Work. The
Publisher shall pay the Author royalties on such sales at the
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applicable export royalty rate.
Territorial Extent of Secondary Rights
47. The secondary rights are world-wide rights, and all provisions as
to the disposition of such secondary rights and the sharing of the proceeds
thereof shall apply equally in all countries of the world.
Duration of Grant
48. All rights granted under this agreement are, except where
expressly subject to earlier termination, to continue in effect during the full
term of the copyright of the Literary Work in the United States under the laws
of the United States.
Author's Rights
49. All rights not expressly granted by the Author to the Publisher
are reserved by the Author. The Author shall not exercise or dispose of any
reserved rights in such a way as to substantially destroy, detract from, impair
or frustrate the value of any rights granted therein to the Publisher, nor shall
the Author publish or permit to be published during the term of this agreement
any book or other writing based substantially on subject matter, material,
characters or incidents in the Literary Work without the written consent of the
Publisher. The Author has not granted and will not grant to any person (except
to the Publisher), permission, authority, right or license for publication or
distribution of the Literary Work in the open English language market, in a
mass-market or trade paperback edition, sooner than the later of one year
following the publication of any British hardcover edition or three months
following publication of the first United States mass market paperback edition.
The Author shall not submit any full-length work or proposal therefor in any
form to the Publisher or to any third party until he or she has delivered to the
publisher the complete manuscript of the Literary Work in Final Form.
Disposition or Exercise by Publisher of Primary Rights
50. The Publisher shall have the exclusive right, but shall not be
obligated, to dispose of or exercise any or all of the primary rights in the
Literary Work.
Disposition of Author's Unshared Secondary Rights
51. The Author shall have the exclusive right to dispose of the
Author's unshared secondary rights, and shall notify the Publisher promptly
after each such disposition.
Flow-Through to Publisher
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52. Until the Author's advance has earned out (after a reasonable
reserve for returns), the Author shall be obligated to pay the Publisher all
proceeds (less the agent's commission) resulting from the disposition of first
periodical rights, foreign language rights and British Commonwealth rights, and
such sums paid to the Publisher shall be credited in reduction of any unearned
portion of the advance paid to the Author hereunder. The Publisher shall have
the right to approve any disposition of such rights made before the Author's
advance has earned out, such approval not unreasonably to be withheld. The
Author's agent is hereby directed to make payments to the Publisher in
accordance with this paragraph within 30 days after Author's agent's receipt
thereof.
Disposition by Publisher of Shared Secondary Rights
53. The Publisher shall have the exclusive right, but shall not be
obligated, as agent of the Author, to dispose of the shared secondary rights as
to which it has authority from the Author. The Publisher may appoint an agent to
dispose of any rights of which the Publisher is authorized to dispose. When
Publisher is specifically authorized to dispose of rights such authorization
shall be deemed an agency coupled with an interest.
Approvals, Sales to Affiliates
54. Neither the Publisher nor the Author shall unreasonably withhold
consent where such consent is requested in connection with the disposition or
exercise of rights under this agreement. The Author and the Publisher shall each
have the right to receive copies of any contracts made with respect to said
rights on request therefor. The Publisher may sell copies of the Literary Work
and license primary and secondary rights granted to Publisher in the Literary
Work to Publisher's parent, subsidiaries, affiliates and divisions, provided
that the terms for such sale or license shall be no less favorable to the Author
than the terms which Publisher in its reasonable judgment would accept from an
unrelated third party.
Author's Consent
55. When the Author's written consent or approval is requested under
this agreement, if the Author, or the Author's agent or estate does not answer
the Publisher's request for such consent or approval within a reasonable time,
or if after reasonable diligence the Publisher has not succeeded in informing
the Author or Author's agent or estate that such consent or approval is desired,
the Author shall be deemed to have given his or her consent.
Author's Name and Likeness
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56. The Publisher may use the name and photograph or other likeness
of the Author on the cover and jacket and generally in connection with the
advertising and promotion of the Literary Work.
Author and Publisher to Execute Documents
57. The Author shall, when requested by the Publisher, execute all
documents which may be reasonably necessary or appropriate to enable the
Publisher to exercise or deal with any of the rights granted hereunder. Author
hereby appoints Publisher to be Author's attorney-in-fact to execute in Author's
name and to file any and all documents necessary to record in the Copyright
Office the assignment of exclusive rights made to Publisher hereunder.
License Without Fee
58. The Publisher is authorized to license publication of the
Literary Work in Braille or large type editions for sale to the physically
handicapped and is authorized to license publication of extracts of the Literary
Work containing not more than approximately 500 words, or 10,000 words in
connection with motion picture licenses, without compensation therefor. In the
event compensation is received it shall be shared as provided in Part SECOND:
B(iii) of the Publishing Agreement.
PART FOUR
Copyright
Copyright in the United States
59. The Author shall be deemed the sole holder and owner of the
copyright in the Literary Work and Publisher may register such copyright in the
United States.
Notice
60. The Publisher shall print in each copy of the Literary Work
published by it any notice required to comply with the applicable copyright laws
of the United States and the provisions of the Universal Copyright Convention
and the Berne Copyright Convention.
Protection of Copyright in Disposition of Rights
61. Any agreement made by the Author or by the Publisher to dispose
of any rights in and to the Literary Work shall require the licensee or grantee
to take all necessary and appropriate steps to protect the copyright in the
Literary Work.
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Foreign Copyright
62. The Publisher may take such steps as it deems appropriate to
copyright the Literary Work in countries other than the United States, but the
Publisher shall be under no obligation to procure copyright in any such
countries, and shall not be liable to the Author for any acts or omissions by it
in connection therewith.
PART FIVE
Royalties and Other Payments
Computation of Royalties Generally
63. When royalties are based on suggested retail price, they shall be
computed on the basis of the number of copies actually sold by the Publisher,
less returns. No royalties shall be computed on copies given away for review or
promotion, nor on copies given or sold to Author.
On Mail Orders and Special Discounts
64. On mail order sales and special discount sales the royalty shall
be 5% of the suggested retail price.
On Sheet and Export
65. On copies sold for export to third parties or outside the United
States by Publisher or its affiliates, and on unbound sheet sales, royalties
shall be calculated on the net amount actually received from such sales. No
royalty will be payable to the Author with respect to any unbound sheet sales or
full copy sales for export where such copies are furnished to a foreign licensee
at the Publisher's cost plus a handling charge for such sheets and/or copies.
On Sales From Reduced Printings
66. On sales made out of any new printings or bindings of 2,500
copies or less, made more than one year after publication date, royalties shall
be computed at one-half the base royalty rate.
Royalty Statements and Payments
67. The Publisher shall render royalty statements and make accounting
and royalty and other payments to the Author (a) in September for the preceding
period January 1 to June 30, and (b) in March for the preceding period July 1 to
December 31, to the extent that Publisher has received payment for the sales
upon which the royalties are calculated. The first such statement and
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payment shall become due three (3) months after the conclusion of the first
complete accounting period (January 1 to June 30 or July 1 to December 31) to
follow publication of the Literary Work. Publisher may from time to time change
such accounting periods provided no longer than six months elapses between any
two accountings to the Author. If for any royalty period the current period
total activity in the Author's account for the Literary Work is less than $100,
then the Publisher may defer the rendering of a statement and payment until such
royalty period as the cumulative activity since the last statement exceeds such
amount.
Details to Be Shown
68. Royalty statements will include the net number of copies sold and
the reserve for returns being held by the Publisher.
Book Club Sales
69. On sales to book clubs, the amount allocated as royalty or other
compensation to the Publisher shall be divided equally between the Author and
the Publisher. No royalty will be payable to the Author on unbound sheet sales
or full copy sales to book clubs where such copies are furnished at the
Publisher's cost plus a handling charge for such sheets and/or copies.
Certain Primary Rights Exercised by Publisher
70. (a) On the exercise of textbook rights by publication under one
of its own imprints royalties (but no further advance) shall be paid to the
Author at the following rates: (i) 10% of the net amount received by Publisher
on all copies sold within the United States; and (ii) 5% of the net amount
received by Publisher on mail order sales and on all copies sold for export or
outside the United States and on special discount sales.
(b) On Publisher's publication of a large print edition, a
hardcover reprint edition, or a calendar based upon the Literary Work under one
of its own imprints, royalties (but no further advance) shall be paid to the
Author at the following rates: (i) 10% of the net amount received by Publisher
on all copies sold within the United States, exclusive of sales specified in
subparagraph (ii) below, and (ii) 5% of the net amount received on mail order
sales, on all copies sold for export or outside the United States and on special
discount sales. If the Literary Work is combined with another work or works in a
calendar, the Author's royalty on such calendar shall be a pro rata share of the
total royalty payable for such calendar, based on the proportion material from
the Literary Work bears to the calendar as a whole.
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(c) On Publisher's exercise of commercial rights, royalties (but no
further advance) shall be paid to the Author at the following rates: (i) 10% of
the net amount received by Publisher on all copies or units sold within the
United States, exclusive of sales specified in subparagraph (ii) below, and (ii)
5% of the net amount received on mail order sales, on all copies sold for export
or outside the United States and on special discount sales.
(d) On the exercise of electronic rights under one of its own or its
affiliated imprints, royalties (but no further advance) shall be paid to the
Author on electronic versions at the following rates: (i) 10% of net receipts
received by Publisher. If the Literary Work is combined with another work or
works in an electronic version, the Author's royalty on such electronic version
shall be a pro rata share of the total royalty payable for such electronic
version, based on the proportion material from the Literary Work bears to the
electronic version as a whole.
(e) On the exercise of audio or video rights by publication under one
of its own imprints, royalties (but no further advance) shall be paid to the
Author at the following rates: (i) 10% of net receipts received by Publisher. If
the Literary Work is combined with another work or works in an audio/video
version, the Author's royalty on such audio/video version shall be a pro rata
share of the total royalty payable for such electronic version, based on the
proportion material from the Literary Work bears to the audio/video version as a
whole.
Remainder and Salvage Sales
71. When the Publisher in its sole discretion determines that copies
of the Literary Work are not readily salable at regular prices within a
reasonable time, the Publisher may remainder copies of the Literary Work (but
not earlier than 12 months from the actual publication date) or dispose of such
copies as surplus at the best price obtainable. Notwithstanding anything set
forth in this agreement, no royalty shall be payable on copies of the Literary
Work sold at a discount of 85% or more from the catalog retail price.
Payment of Advance
72. The payment of advances to the Author, including such payment
following delivery of the manuscript, shall not be deemed to be evidence that
the manuscript of the Literary Work is acceptable to the Publisher, or that the
Author has complied with Author's warranties or other agreements hereunder.
Offset
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73. Any advance royalties or other sums paid to or on behalf of the
Author under this agreement or otherwise, and any amounts due from the Author to
the Publisher, may be applied in reduction of any amounts payable to the Author
under this agreement. In the event of any overpayment by the Publisher to the
Author, the Publisher may, in addition to any other remedies available to it,
recoup such overpayment by deducting it from any amount payable to the Author
under this agreement or any other agreement between the Author and the
Publisher.
74. DELETED
Reserve for Returns
75. Any amounts payable to the Author hereunder shall be subject to
such reasonable reserve for returns of copies as the Publisher shall establish
in its reasonable discretion.
Author's Right to Examine Books of Account
76. The Author or the Author's representative may, upon written
request, conduct a reasonable examination of the books and records of the
Publisher insofar as they relate to the Literary Work for the period of two
years immediately preceding such examination. Such examination must be conducted
by a "Big 6" or otherwise affiliated accounting firm. Such examination shall
occur on Publisher's premises at a time convenient to Publisher, but no later
than 90 days after Author's request for such examination. Statements rendered
hereunder shall be final and binding upon the Author unless objected to in
writing, setting forth the specific objections thereto and the basis for such
objections, within two years after the date of the statement. Author or Author's
representative shall be limited to one (1) examination per calendar year.
77. DELETED
PART SIX
Delivery of Manuscript and Correction of Proofs
Failure of Author to Deliver Work in Final Form
78. (a) Timely delivery of the Literary Work in Final Form is
essential to the Publisher and is of the essence of this agreement. Any
extension of the delivery date must be in writing signed by the Publisher. If
the Author fails to deliver the Literary Work in Final Form within the time
specified, the Publisher shall have the option to give the Author a notice in
writing termination this agreement, and in such event the Publisher may then
recover and the Author shall repay on demand
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all amounts advanced to the Author. In the event that the Author completes a
manuscript for the Literary Work after termination of this agreement pursuant to
the preceding sentence, then the Publisher shall have the option, exercisable
within 30 days after receipt of said manuscript, to acquire the Literary Work on
the same terms and conditions as provided in this agreement.
(b) The Publisher shall not be obligated to accept or publish the
Literary Work if in its sole judgment such work is not acceptable to it. If the
Author delivers a manuscript of the Literary Work within the time specified, in
what the Author represents to be Final Form, the Literary Work shall be deemed
to be acceptable to the Publisher unless, within 90 days after receipt thereof
by the Publisher, the Publisher (1) notifies the Author in writing that in its
editorial judgment the Literary Work is not acceptable to it, in which case the
Author shall repay on demand all amounts advanced to the Author and upon such
repayment this agreement shall terminate; or (2) notifies the Author in writing
of the reasons why the submitted manuscript is unacceptable (including, without
limitation, reservations or questions of the Publisher concerning matters within
any of the warranties, in which case the Author shall have a period of 60 days
to respond to the satisfaction of the Publisher in respect to all subject matter
of such notice, provided however that if the Publisher in its sole discretion
determines to submit the manuscript to a legal review, the Author shall
cooperate with Publisher or Publisher's counsel in such review and the time for
Publisher to accept or reject the Literary Work shall be extended to 30 days
after completion of the legal review.
Delay for Author's Illness
79. If because of illness or any other factor beyond his or her
control, the Author is unable to deliver the Literary Work by the date provided
in the Publishing Agreement, the date for such delivery shall be extended for a
reasonable time. If after the elapse of such reasonable time the Author
continues to be unable to deliver the Literary Work or to satisfy the
Publisher's request for changes or substantiation, then the Publisher may give
written notice of termination, effective at the expiration of 60 days or such
longer period as the Publisher may specify in such notice, and if the Author
shall fail to deliver the manuscript in Final Form within such period then this
agreement shall terminate and the Author shall repay on demand all amounts
advanced to author. If the Author dies prior to acceptance of the manuscript by
the Publisher, whether or not following delivery of the manuscript in Final
Form, the Publisher, in its sole discretion, may terminate this agreement upon
giving written notice of termination to Author's personal representatives within
90 days of receipt by Publisher of notice of Author's death. In such event the
publisher may then recover from such personal representatives all amounts
previously advanced hereunder.
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Failure to Delivery Photos, Charts, etc.; Care of Property
80. (a) If the Author fails to deliver photographs, charts, maps,
drawings, or the index, in cases where any of these are required by Publisher
for the Literary Work, the Publisher shall have the right (but not the
obligation) to cause the same to be prepared, and in such event the cost of such
preparation shall be borne by the Author as follows: (i) Author shall pay such
costs upon receipt of an invoice from the Publisher; (ii) Publisher may withhold
a portion of any advances payable to the Author under this agreement and deduct
such costs from said advances; or (iii) at Publisher's option, Publisher may
charge such cost to Author's royalty account, provided however that if the
advance payable to Author under this agreement is unearned one year after
publication of the Literary Work, then Author will reimburse Publisher for such
costs upon receipt of an invoice from Publisher.
(b) Publisher shall be responsible for only the same care of any
property of Author in its hands as it takes of its own. Except in the case of
Publisher's gross negligence, Publisher shall not be responsible for loss or
damage to any property furnished by Author while in Publisher's custody or in
the custody of anyone to whom delivery of such property is necessary in
connection with the production of the Literary Work or is otherwise made with
Author's consent. Author shall retain copies of any such property and, in the
case of photographs, the negative for each photograph furnished.
Corrections of Proofs
81. The Publisher shall supply the Author with one set of galley
proofs, and, at its option, page proofs, and the Author shall return each set of
proofs with his or her corrections to the Publisher within 21 days of receipt
thereof. The Publisher also shall proofread the proofs. If the Author shall fail
to return the corrected proofs within the 21-day period herein specified, the
Publisher may publish the Literary Work without the Author's approval of the
proofs - provided, however, that if, because of illness or any other factor
beyond his or her control, the Author informs the Publisher that he or she is
unable to return the corrected proofs, his or her time for correcting such
proofs shall be extended for another 21-day period, and after that period the
Publisher may publish the Literary Work without the Author's approval of the
proofs.
Cost of Author's Alterations
82. If, in the correction of galley and page proofs, the Author
requests changes from the text of the manuscript, the Author shall bear the cost
of such changes over 15% of the original cost of composition, as follows: (i)
Author shall pay
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such costs upon receipt of an invoice from the Publisher; (ii) Publisher may
withhold a portion of any advances payable to the Author under this agreement
and deduct such costs from said advances; or (iii) at Publisher's option,
Publisher may charge such cost to author's royalty account, provided however
that if the advance payable to the Author under this agreement is unearned one
year after publication of the Literary Work, then the Author will reimburse
Publisher for such costs upon receipt of an invoice from Publisher. At Author's
request Publisher shall submit an itemized statement of such charges and shall
make available corrected proofs for the Author's inspection at the Publisher's
office.
No Obligation to Publish
83. (a) Notwithstanding anything contained herein to the contrary,
the Publisher shall not be obligated to publish the Literary Work if, in its
sole and absolute judgment, whether before or after acceptance thereof, the
Literary Work contains libelous or obscene material, or its publication would
violate the right of privacy, common law or statutory copyright, or any other
right of any person. In such event, Publisher shall be entitled on demand to the
return of all monies advanced to the Author hereunder, and to terminate this
agreement. Notwithstanding any request by Publisher for change or
substantiation, nothing in this agreement shall be deemed to impose upon the
Publisher any duty of independent investigation or to relieve the Author of any
of the obligations assumed by Author hereunder, including, without limitation,
the ongoing validity of Author's warranties and representations.
(b) Notwithstanding anything contained herein to the contrary, the
Publisher shall not be obligated to publish the Literary Work if, in its sole
and absolute judgment, whether before or after acceptance thereof, supervening
events or circumstances since the date of this agreement have, in the sole
judgment of the Publisher, materially adversely changed the economic
expectations of the Publisher in respect to the Literary Work at the time of the
making of this agreement, and in such event all of the Publisher's rights in and
to the Literary Work shall terminate and revert to the Author on the giving by
the Publisher to the Author of notice of its decision, or, if the Publisher
fails to do so, by the Author pursuant to Paragraph 84, and in any such event,
except as provided in Paragraph 79, the Author shall be entitled as liquidated
damages and in lieu of all damages and remedies, legal or equitable, to retain
all payments theretofore made to the Author under this agreement.
PART SEVEN
Delays in Publication
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Delays Due to Publisher's Fault
84. The Publisher, in its sole and absolute discretion, shall have
the right to reschedule publication of the Literary Work beyond the agreed
publication date for a reasonable time. If publication of the Literary Work is
delayed in the absence of excusable circumstances the Author's sole and
exclusive remedy shall be to give the Publisher a notice in writing, stating
that if the Publisher fails to publish the Literary Work within 180 days after
the date of such notice, then all of the Publisher's right in and to the
Literary Work shall terminate at the end of such 180-day period; and if, in such
event, the Publisher shall fail to publish the Literary Work within such 180-day
period, all of the Publisher's rights in and to the Literary Work shall
terminate and revert to the Author, and the Author shall be entitled, as
liquidated damages and in lieu of all damages and remedies, legal or equitable,
to retain all payments theretofore made to Author under this agreement.
Delays Not Due to Publisher's Fault
85. If publication is delayed beyond the agreed publication date
because of acts or conditions beyond the control of the Publisher or its
suppliers or contractors, including (by way of illustration and not by way of
limitation) war, shortages of material, strikes, riots, civil commotions, fire
or flood, the agreed publication date shall be extended to a date six months
following removal of the cause of the delay.
PART EIGHT
Disputes Between Parties
Disputes Between Parties
86. Exclusive jurisdiction for the determination of any dispute
solely between or among parties to this agreement is hereby vested in the
Superior Court, Los Angeles, County or, at the election of either party if the
jurisdictional prerequisites at the time exist, in the United States District
Court for the Central District of California, and each party hereto shall submit
to the jurisdiction of either such court in the City of Los Angeles or State of
California for the determination of any such dispute and hereby consents (in
addition to service of process by any other means provided at the time by law)
to service of process on him, her or it, as the case may be, by registered mail,
first class postage prepaid, return receipt requested, addressed to the party
named in such process at the address to which notices may be given pursuant to
Paragraph 106 of this agreement. Such notice by mail so given shall confer
jurisdiction upon such court. At the sole election and
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discretion of Publisher, all disputes between the parties shall be settled by
arbitration before the American Arbitration Association in Los Angeles,
California.
PART NINE
Indemnification and Defense of Litigation
Indemnification by Author
87. The Author shall indemnify and hold the Publisher harmless
against any loss, liability, damage, cost or expense (including reasonable
attorneys' fees) arising out of or for the purpose of avoiding any suit,
proceeding, claim or demand or the settlement thereof, which may be brought or
made against the Publisher by reasons of the publication, sale, or distribution
of, or disposition of rights in respect to the Literary Work, based on the
contents of the Literary Work, except in connection with matters involving
solely controversies arising out of or based on commercial transactions between
the Publisher and its customers.
Notice of Suits Brought
88. Prompt notice of any suit, proceeding, claim or demand brought or
made against the Publisher or Author shall be given to the Author or Publisher
respectively.
Cost of Defending Suits
89. If any suit, claim or demand is brought or made, other than as
excepted in Paragraph 87, the Publisher may elect (i) to undertake the defense
thereof, or (ii) to notify the Author to undertake the defense. If the Publisher
does so notify the Author, the Author shall undertake such defense; and in such
cases the Publisher may, at its option, join in the defense. In all the
foregoing events the cost and expense of any defense shall be borne by the
Author, unless the Author has, pursuant to notification from the Publisher,
undertaken the defense and the Publisher at its option elects to join with the
Author in the defense, in which case the total cost and expense (including
reasonable attorneys' fees) shall be shared equally by the Publisher and Author.
Limitation on Liability
90. Whenever any non-excepted suit, claim or demand is instituted,
the Publisher may withhold payments due to the Author under this agreement, or
any other agreement between the Author and the Publisher. If a final adverse
judgment is rendered in such a suit and is not discharged by the Author, the
Publisher may apply the payments so withheld to its expenses and to the
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satisfaction and discharge of such judgment. Author shall be insured under the
Publisher's liability policy, which covers claims of libel and other forms of
defamation, invasion of privacy or publicity and infringement of copyright or
trademark arising from publication or the Literary Work, to the extent such
policy is valid and collectible. In connection with such coverage and
notwithstanding the other provisions of this Part Nine, with respect to all
judgments, settlements and costs of defense, including attorneys' fees and other
costs of claims covered by the policy, the Publisher and the Author shall share
equally the first $100,000 of all such costs; thereafter the Author's liability
shall be limited to 10% of all such costs up to the limits of the policy.
Publisher shall retain counsel to represent Publisher and Author in any
proceeding brought with respect to all such claims and shall control the defense
of such claims, and Author shall cooperate fully with Publisher and said counsel
in such defense. Notwithstanding the foregoing, Author shall be solely
responsible for the cost of counsel separately retained by the Author for any
reason and for judgments, settlements and costs of defense, including all
attorneys' fees, attributable to a willful or reckless breach of this agreement
by Author, and for any uninsured amount upon the finding of any copyright
infringement.
PART TEN
Infringement by Others
Suits by Publisher or Author
91. If during the existence of this agreement the copyright, or any
other right in respect to the Literary Work, is infringed upon or violated, the
Publisher may, at its own cost and expense, take such legal action, in the
Author's name if necessary, as may be required to restrain such infringement and
to seek damages therefor. The Publisher shall not be liable to the Author for
the Publisher's failure to take such legal steps. If the Publisher does not
bring such an action, the Author may do so in his or her own name and at his or
her own cost and expense. Money damages recovered for an infringement shall be
applied first toward the repayment of the expense of bringing and maintaining
the action, and thereafter the balance shall be divided equally between the
Author and Publisher.
PART ELEVEN
Withdrawal from Publication
If Discontinued or Out of Print
92. If, at any time after the expiration of two years from the actual
publication date, the Publisher allows all of its
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editions of the Literary Work to go out of print and such status continues in
effect for six months after the Author has made a written request for Publisher
to put the Literary Work back into print, and if there is no English language or
foreign language reprint edition authorized by Publisher available or contracted
for, then the Author may by a notice in writing terminate this agreement subject
to any licenses previously granted by Publisher (and any renewals or extensions
thereof) and Publisher's right to continue to share in the proceeds therefrom.
In the event of such termination the Author shall have the right to purchase any
available plates or film of the Literary Work at cost. If the Author does not
purchase such plates, film, copies or sheets, then the Publisher may dispose of
them at any price and retain the proceeds of such sale. The Publisher is under
no obligation to retain any such plates, film, copies or sheets. The Literary
Work shall not be deemed out of print as long as it is (a) available in any
edition, including electronic editions, in Publisher's inventory; (b) offered
for sale by Publisher in its catalog or order form; or (c) electronically stored
and available to the consumer for retrieval.
PART TWELVE
Breach by Publisher
Termination for Material Breach
93. Except as otherwise specifically provided in this agreement, if
the Publisher shall commit a material breach of this agreement and shall fail to
remedy the breach within 60 days after receiving a written notice from the
Author requesting the Publisher to remedy such breach, the Author may by a
notice in writing (a) revoke the Publisher's right to publish the Literary Work,
if it has not been published at such time; (b) require the Publisher to cease
further publication of the Literary Work, if it has been published at such time,
but in such event the Publisher shall be permitted to sell all copies of those
editions of the Literary Work which have already been printed or are in the
process of being printed; (c) revoke the grant to the Publisher of such of the
other primary rights as the Publisher has not already exercised or disposed of;
(d) revoke any power given to the Publisher to dispose of such secondary rights
as have not already been disposed of; and (e) revoke any grant of the rights
made to the Publisher in the Publishing Agreement to share in the proceeds on
disposition of such secondary rights as have not already been disposed of. In
such event the Author shall have the right to purchase any available plates or
film of the Literary Work at cost, and/or remaining copies or sheets of the
Literary Work already printed at the Publisher's manufacturing cost. If the
Author does not purchase such plates, film, copies or sheets, the Publisher may
dispose of them at any price and retain the proceeds of such sale. The Publisher
is
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under no obligation to retain any such plates, film, copies or sheets. Any right
of the Author pursuant to Paragraph 76 shall survive such termination.
PART THIRTEEN
Miscellaneous Provisions
Publisher Shall Determine Style, etc.
94. The format, imprint, style of printing and binding, and all
matters relating to the manufacture, sale, distribution and promotion of the
Literary Work shall be determined at the sole discretion of the Publisher.
Title Changes
95. The title of the Literary Work as set forth in the Publishing
Agreement may be changed at the sole discretion of the Publisher.
Single Author to Represent
96. When there is more than one author, any one may be designated in
writing to act on behalf of all the authors jointly, and the Publisher may rely
on the acts of the author so designated as representative of and binding upon
all authors; and in the absence of such designation, the Publisher may deal with
any one of the authors as the agent and representative of all, and may rely on
the acts of such author-representative as binding on all the authors. When there
is more than one author, unless the Publishing Agreement specifies otherwise or
until receipt by the Publisher of contrary instructions, the Publisher may
assume that all authors share equally in proceeds payable hereunder and may
either issue separate checks in equal amounts payable to each author severally
or single checks payable jointly to all authors.
Free Copies for Author, Purchases by Author
97. The Publisher shall present the Author with ten free copies of
each edition of the Literary Work published by the Publisher, upon publication.
The Author shall have the right to purchase additional copies for his or her own
use at a 50% discount from the catalog retail price.
Revisions
98. Author shall revise the first and subsequent editions of the
Literary Work at the request of Publisher and supply any new matter necessary
from time to time to keep the Literary Work up to date. If Author shall neglect,
be incapable, be unwilling or, in Publisher's judgment, will not be able to
revise or supply new
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matter at a time and in a form satisfactory to Publisher, then Publisher shall
have the right to engage some other person(s) to do so. When such revisions are
not made by Author, Publisher may cause such fact to be evidenced in the revised
edition. Publisher shall have all rights in connection with all subsequent
editions which Publisher has in the original Literary Work.
Publisher to Execute Documents
99. If any of the rights granted to the Publisher revert to the
Author, the publisher shall execute all documents which may be necessary or
appropriate to revest all such rights in the Author.
Acceptance of Agreement
100. This agreement shall be binding on the Publisher only when it
has been signed by an authorized officer of the Publisher.
Laws Applicable to Agreement
101. This agreement shall be construed in accordance with the laws of
the State of California applicable to agreements made and performed therein.
Agreement on Binding on Successors in Interest
102. 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.
Modification of Agreement
103. This agreement may not be modified, altered or changed except by
an instrument in writing signed by the party to be charged.
Waivers Are Not Cumulative
104. No waiver of any term or condition of this agreement, or of any
breach of this agreement or of any part thereof, shall be deemed a waiver of any
other term or condition of this agreement or of any later breach or of any part
thereof, nor shall publication or continued publication or payment by the
Publisher following notice or claim of facts which, if true, would constitute a
breach of warranty, representation or agreement of the Author, constitute or
imply any waiver by the Publisher of any defense, rights or remedies of the
Publisher. No failure by either party to assert any right under this agreement
shall preclude any later assertion of such right.
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Validity and Enforceability
105. The invalidity or unenforceability of any provision of this
agreement shall not affect the validity or enforceability of any other provision
hereof, and any such invalid or unenforceable provision shall be deemed to be
severable.
Notices
106. All notices to be given hereunder by either party shall be in
writing and shall be sent to the other party at the respective addresses as they
are given in the Publishing Agreement, unless said addresses are changed by
either party by a notice in writing to the other party.
Singular Shall Include Plural
107. Wherever required by the context of this agreement, the singular
shall include the plural, and the masculine shall include the feminine and the
neuter. The term "Author" shall include "Authors" if there are more than one.
Captions, Table of Contents, etc.
108. Captions or printed marginal notes, and the table of contents of
this agreement are for convenience only, and are not to be deemed part of this
agreement.
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