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Exhibit 10.47
Publishing Agreement
SIMON & XXXXXXXX, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
(the "Publisher")
and
Xxxx Xxx and Xxxxxx Xxxx
(Jointly and severally herein the "Author")
whose agent is Xxxxxxxx Literary Agency
0000 Xxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Agree:
FIRST: The Author
A. shall deliver to the Publisher one copy of the literary work now
entitled XXXX XXX: MASTER OF IMAGINATION (the "Literary Work") in Final
Form on or before March 1, 2000. The complete manuscript of the Literary
Work shall be approximately 75,000 words in length, shall include 25-50
Illustrations (supplied by the Author in reproducible quality as part of
the complete manuscript) and is described as follows: the life of Xxxx
Xxx, told in the first-person by Xx. Xxx with third-party commentary about
Xx. Xxx'x historical influence interspersed throughout;
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 except calendar rights, audio rights and
video rights; and
(ii) the shares provided in THIRD: A of this Publishing Agreement
of the proceeds on disposition of the secondary rights; and
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D. grants the Publisher the first opportunity to consider Xxxx Xxx'x
next (i.e., written after the Literary Work) full-length work of
non-fiction for publication on mutually satisfactory terms. If, within 60
days following submission of a detailed outline for such work to the
Publisher, or within 30 days after delivery and acceptance of the complete
manuscript for the Literary Work, whichever shall be later, Publisher and
Xx. Xxx are unable in good faith to agree upon terms for publication, Xx.
Xxx shall be free thereafter to submit such next work to other publishers
and shall advise Publisher of the best offer thereafter made by any other
publisher with respect to said next work, whereupon Publisher shall have
the right to exercise its option with an advance equal to ten percent
above the said best offer made 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 18 months after
acceptance of the manuscript therefore. The Publisher acknowledges,
however, that it currently intends to publish the Literary Work in its
Spring publishing season of 2001 and shall make reasonable efforts to
adhere to such schedule;
B. shall pay the Author, as an advance against and on account of all
monies accruing to Author under this Agreement, the sum of Thirty Thousand
Dollars ($30,000), payable as follows:
$15,000 on signing hereof; and
$15,000 on delivery and acceptance of the complete manuscript, as
satisfactory to the Publisher; and
(i) royalties at the following rates, based on the catalog retail
price of every copy sold in the United States, less returns, for
sales of the trade hardcover edition (if any), exclusive of sales
specified in subparagraph (iv) below:
10% on the first 5,000 copies;
12-1/2% on the next 5,000 copies; and
15% on all copies sold thereafter;
(ii) royalties at the following rates, based on the catalog retail
price of every copy sold in the United States, less returns, for
sales of the trade paperback edition, exclusive of sales specified
in subparagraph (iv) below:
7-1/2% on all copies sold;
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(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 textbook,
large print or hardcover reprint editions, on calendars and on
electronic editions of the Literary Work published by the Publisher
itself 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 100% to Author 0% to Publisher
Motion Picture Rights 100% to Author 0% to Publisher
Theme Park Rights 100% to Author 0% to Publisher
Radio Rights 100% to Author 0% to Publisher
Television Rights 100% to Author 0% to Publisher
*First Periodical Rights 90% to Author 10% to Publisher
Commercial Rights 100% to Author 0% to Publisher
Foreign Language Rights 100% to Author 0% to Publisher
British Commonwealth Rights 100% to Author 0% to Publisher
Publisher is authorized exclusively on behalf of the Author to dispose of
such secondary rights as are preceded by an asterisk.
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
C. agree to the following special provisions, which shall prevail over
any conflicting provisions in the Basic Agreement:
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1. The Author shall purchase a minimum of 5,000 copies of a
hardcover edition of the Work from Publisher, ordered in sufficient time
for Publisher to add such quantity to its first print run. Publisher shall
sell such copies to the Author at a discount of 70% off from the suggested
catalog retail price, F.O.B. Publisher's warehouse plus applicable sales
tax. Thereafter, the Author may, in its discretion but subject to
Publisher's availability of stock, purchase additional hardcover and/or
paperback copies of the Work from Publisher, subject to the Publisher's
availability of stock thereof, at the following discounts: 1-99 copies per
order, 40% off; 100-999 copies per order, 50% off; and 1,000 copies or
more per order, 55% off, or at such other discount as the Author may agree
upon with Publisher's Special Sales Department. Payment for all such
purchases shall be made as follows:
(a) 50% on or about the time of confirmation of the order, upon
notice to the Author from Publisher that such payment is due; and
(b) the balance thirty days after delivery of the first shipment
of books to the Author, provided the author supplies the Publisher
with satisfactory references to establish credit to carry said
balance. In the event the Author is unable to provide such
satisfactory references, then said balance shall be paid in full
prior to shipment of books to the Author.
All copies purchased by the Author hereunder are non-returnable, and
no royalty shall be paid to the Author on copies purchased at discounts of
greater than 40% off. The Author shall have the right to resell such
copies in the Author's discretion, but only outside of Publisher's normal
trade retain and wholesale channels.
AUTHOR SIMON & XXXXXXXX, INC.
/s/ Xxxx Xxx (L.S.) By /s/ N. GUMPERT
---------------------- ------------------------------
Xxxx Xxx AUTHORIZED SIGNATURE
Soc. Sec. #:
------------------------
Citizenship:
------------------------
/s/ Xxxxxx Xxxx (L.S.)
----------------------
Xxxxxx Xxxx
Soc. Sec. #:
------------------------
Citizenship:
------------------------
Dated: November 11, 1999
------------------------------
Xxxxxx
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BASIC AGREEMENT
Relating to the Publishing Agreement dated November 11, 1999
Between Simon & Xxxxxxxx, Inc., Publisher, and
Xxxx Xxx and Xxxxxx Xxxx, Author,
For the publication of the literary work now entitled
XXXX XXX: MASTER OF IMAGINATION
Table of Contents
Page
----
PART ONE
Definition of Terms 6
PART TWO
Author's Warranties 11
PART THREE
Extent of Grant 12
PART FOUR
Copyright 15
PART FIVE
Royalties and Other payments 15
PART SIX
Delivery of Manuscript and Correction of Proofs 18
PART SEVEN
Delays in Publication 20
PART EIGHT
Disputes 20
PART NINE
Indemnification and Defense of Litigation 21
PART TEN
Infringement by Others 22
PART ELEVEN
Withdrawal from Publication 22
PART TWELVE
Breach by Publisher 22
PART THIRTEEN
Miscellaneous Provisions 23
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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. The Publisher may publish a trade
paperback edition prior to or simultaneous with any hardcover edition, and may
refrain, in its discretion, from the publication of a hardcover edition (subject
only to the Publisher's obligations in THIRD: C.1 of the Publishing Agreement to
supply copies of a hardcover edition to the Author, on the terms thereof).
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 trade channels.
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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 or which may combine text and/or illustrations from the
Literary Work with text and/or illustrations from other works. The calendar
rights are reserved by the Author.
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
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
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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 transmissions of all or any portion of the Literary Work,
alone or in combination with other works or materials (including still
photographs and illustrations, video footage, sound and additional text),
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 or 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 Rights
12. "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. The audio rights are
reserved by the Author, but the Publisher will have the first exclusive
opportunity to acquire such rights on mutually satisfactory terms. If the Author
and Publisher are unable in good faith to agree on terms for the Publisher's
acquisition of such rights within 30 days after they commence negotiations
therefore (which negotiations will not begin until after delivery and acceptance
of the complete manuscript for the Literary Work), then the Author shall be free
thereafter to offer the audio rights to other publishers.
Video Rights
13. "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. The video rights are
reserved by the Author.
Digest Rights
14. "Digest rights" shall mean the exclusive right to 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 words or
one-half of the length of the Literary Work, whichever is less.
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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 on 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.
Theme Park Rights
18. "Theme part rights" shall mean the exclusive right to use all or any
portion of the Literary Work in and in connection with amusement/tour/theme
parks. Such rights shall include, without limitation, the right to (i) create,
present, stage and/or perform any attraction, presentation, show and/or ride
based upon and/or derived from the Literary Work; (ii) use "walk-around"
performances by actors recreating characters in the Literary Work; (iii) use the
Literary Work in and/or in connection with any such attraction, presentation,
show and/or ride; and (iv) use any of the foregoing to advertise, exploit and/or
promote any such amusement/tour/theme park.
Radio Rights
19. "Radio 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 AM, FM or other
broadcasting.
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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 Publishing Agreement, the Author is to
retain all the proceeds from disposition.
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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.
Actual Publication Date
31. "Actual publication date" shall mean the date of the first sale and
shipment of the Literary Work.
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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 arrangement 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), that he or she will not undertake to write any
other work for publication in book form before delivery to the Publisher or 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-
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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 the execution of this agreement and shall be true on the date of the
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 in the English language and the
Spanish language in the United States, its territories and possessions (which
include but are not limited to all U.S. military installations), the Philippine
Republic and Canada, and the non-exclusive right of publication in the English
language throughout the rest of the world except within the British Commonwealth
(excluding Canada); 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 applicable export
royalty rate.
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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 substantially to destroy, detract from, impair or
frustrate the value of any rights granted herein 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 of 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 latter 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 therefore 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. During the Author's lifetime, however, such right shall be
subject to the Author's consent in case of disposition of mass market paperback
rights, such consent not unreasonably to be withheld or delayed. The Publisher
shall notify the Author promptly after each disposition of primary rights, but
inadvertent failure to do so will not be deemed a breach of this agreement.
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
52. Deleted
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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 therefore. 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 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
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 publish or license publication of the
Literary Work in Braille or large type editions for sale to the physically
handicapped and is authorized to publish or license publication of extracts of
the Literary Work containing not more than one
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chapter or 10,000 words for promotional purposes and in connection with motion
picture licenses, without compensation therefore. 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 Publisher shall identify the Author as the owner of the
copyright in the Literary Work and may register such copyright in the United
States in the name of the Author.
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.
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. The Author may copyright the Literary Work in any
foreign country if the Publisher fails to take steps to obtain such a copyright
within 30 days after receiving a written request from the Author to do so.
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PART FIVE
Royalties and Other Payments
Computation of Royalties Generally
63. When royalties are based on the catalog 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 to the Author.
On Mail Orders and Special Discounts
64. On mail order sales and special discount sales the royalty shall be
5% of the net amount actually received from such sales.
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 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 (s) in February for the preceding
period April 1 to September 30, and (b) in August for the preceding period
October 1 to March 31. 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 statement shall state the number of copies sold and returned
during the period covered and the reserve for returns being held by the
Publisher. If Author so requests in writing, the Publisher shall, within 60 days
after its receipt of such request, advise the Author in
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available detail of the number of copies printed, sold, and given away during
the current period covered by the last royalty statement rendered to the Author,
as well as the approximate number of salable copies on hand at the end of said
period.
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) 6% of the catalog retail price on the first 25,000
copies sold within the United States, exclusive of sales specified in
subparagraph (iii) below; and (ii) 7-1/2% of the catalog retail price on all
copies sold within the United States thereafter, exclusive of the sales
specified in subparagraph (iii) below; and (iii) 5% of the net amount actually
received on mail order sales, 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 or a
hardcover reprint edition of 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.
(c) 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 prevailing rate paid for similar uses.
Author and Publisher shall negotiate in good faith to establish such rate. 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.
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. Publisher shall
20
make no remainder sale without first offering copies to the Author at the
estimated remainder price, provided, however, that inadvertent failure to offer
such copies to the Author will not be deemed a material breach of this
agreement.
Payment of Advances
72. The payment of advances to the Author, including such payment
following delivery of the manuscript, shall not be deemed to be evidence either
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.
An unearned advance under this agreement or any other agreement between Author
and Publisher will not be deemed an overpayment.
Offset
73. Any advance royalties or other sums paid to or on behalf of the
Author under this agreement or other wise, 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 Author and Publisher
will not be deemed an overpayment.
Freight Pass-Through
74. In some instances Publisher prints on the jackets and/or covers of
its books a suggested cover price that is higher than its catalog retail price.
In such instances, where the royalty is based on the retail price, the catalog
retail price, not the suggested cover price, shall be the basis for the
computation. The difference between the two prices enables the retailer to
recoup its freight costs.
Reserve for Returns
75. Any amounts payable to the Author hereunder shall be subject to such
reasonable reserve for returns of copies of the Literary Work 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 shall be 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 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.
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Author's Agent
77. If the Author has an agent, as indicated by the inclusion of an
agent's name and address in the Publishing Agreement, until receipt by the
Publisher of notice signed by the Author canceling the agent's authority
hereunder, all payments accruing to the Author under this agreement shall be
made to such Author's agent, and the receipt by the Author's agent shall
constitute a full and valid discharge of the Publisher's obligations for such
payments under this agreement. Author's agent is fully authorized to do and
perform all acts on behalf of the author in all matters arising out of or under
this agreement, and the Publisher may conclusively rely upon such authority
until actual receipt by Publisher of written notice, signed by the Author,
canceling or limiting such authority. No such revocation or limitation shall
affect the validity of any act of the agent prior to receipt of such notice by
the Publisher to the extent that the Publisher has relied thereon.
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 30 days after the time specified,
the Publisher shall have the option to give the Author a notice in writing
terminating this agreement, and in such event the Publisher may then recover and
the Author shall repay on demand 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 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, representations and agreements contained in Paragraphs 36-42), 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.
If the Author fails to deliver a revised manuscript within said 60-day period,
or if the revised manuscript is not acceptable to the Publisher, then Author
shall repay on demand all amounts advanced to the Author and upon such repayment
this agreement shall terminate. If the
22
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 notwithstanding anything to the contrary in this agreement 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 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 a
written notice of termination to the 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.
Failure to Deliver 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.
Correction of Proofs
81. The Publisher shall supply the Author with one set of galley or
other first proofs and, at its option, subsequent proofs, and the Author shall
return each set of proofs with his or
23
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 so 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 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 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 sale
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.
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PART SEVEN
Delays in Publication
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 rights 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 of 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 Supreme
Court, New York County, or, at the election of either party of the
jurisdictional prerequisites at the time exist, in the United States District
Court for the Southern District of New York, and each party hereto shall submit
to the jurisdiction of either such court in the City and State of New York 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 t 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.
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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 reason 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 born 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
satisfaction and discharge of such judgment. Author shall be insured under the
Publisher's liability policy which covers claims for libel and other forms of
defamation, invasion of privacy or publicity and infringement of copyright or
trademark arising from publication of 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.
26
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 therefore. 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 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, and/or any remaining copies or
sheets of the Literary Work at cost. If the Author does not purchase such
plates, film, copies or sheets, then
27
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 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 places, film copies or sheets, 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 places, 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. The Publisher
may not make changes in the manuscript of the Literary Work without the consent
of the Author, except that the Publisher may make changes (i)
28
in the capitalization and punctuation of the Literary Work, to make it conform
to the Publisher's accepted style, or (ii) in the spelling and punctuation of a
British edition of the Literary Work, to make it conform to American usage.
Title Changes
95. The title of the Literary Work as set forth in the Publishing
Agreement may be changed by mutual agreement of the Author and 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.
Free Copies for Author, Purchases by Author
97. The Publisher shall present the Author with fifty-three 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, and not for resale, at a 40% discount from the catalog retail price (or
otherwise in accordance with the provisions of THIRD: C.1 of the Publishing
Agreement).
Revisions
98. (a) 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 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.
(b) All royalties payable to the Author on each subsequent edition
will be computed separately from the number of copies sold of prior
editions. If individuals other than Author revise any editions of the
Literary Work, then Author shall receive as royalties on the first such
revised edition 50% of the royalties otherwise due hereunder. Thereafter,
with respect to any subsequent edition to which the Author does not
contribute, the royalty shall equal 50% less than Author received on the
prior edition, through and including the third such revision and on any
revision subsequent thereto Author will not receive any royalties.
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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 New York 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 of this
agreement 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 defenses, 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.
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.
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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. All notices shall be
sent by registered mail or other form of receipted or acknowledged delivery
including a fax transmission acknowledged as received by the party to which it
is sent.
Singular Shall Include Plural
107. Wherever required by the context in this agreement, the singular
shall include the plural, and the masculine shall include the feminine and the
neuter. The term "Author" shall include the "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.
