Publishing Agreement
1. OPENING SCHEDULE (MAJOR TERMS)
The Author/Owner’s Name, address and ABN: (as per membership form)
The Publisher’s Name, address and ABN: Evolve Systems Group Pty Ltd 51098121343
Date this Contract made: (as per membership form)
This agreement assumes the Author/Owner wants the Publisher to act as a Hybrid Publisher on their behalf. If they choose to have all the works uploaded to their platform accounts instead then Clauses 2,5,8,14,15,18,19 do not apply and this agreement is purely a "fee for service" arrangement.
Provisional Title of the Work: TBA
Definition of the Work: Assist creation of book
Description of the Work: book creation, publishing and promotion
(a) a text-only e-book;
(b) ebook (.mobi,.epub)
The Delivery Date: Typically we aim for 90 days of contract commencement
The Term of this Agreement/Licence:
(a) 12 months from the signing of the Contract based on continuous annual rollover until terminated by either party.
The Territories: World
Estimated List Price:
The first retail list price on release of a text-only digital platform: US$.99cents
The first retail list price on release of Printed Book $TBA
DEFINITIONS
In this document:
“Insolvent” means insolvent within the meaning set out in the Corporations Act 2001, as disclosed in the Publisher’s accounts or otherwise, or where the Publisher is presumed to be insolvent under any applicable law.
“Net Receipts” means gross receipts of the Publisher from sale or licence of the Work and any GST component, without further deductions.
“List Price” means the first retail price as recommended by the Publisher on release.
2. EXCLUSIVE LICENCE
(a) The Author/Owner grants to the Publisher an exclusive licence for the Term to communicate the Work to the public by way of electronic publication of the Work in verbatim text (read-only) form , specifically as a:
(i) publication designed for an e-book reader or any device designed to be read by electronic or digital means; (“Electronic/Digital Edition”); AND/OR
(ii) publication designed for an enhanced e-book that is substantially similar in content to a book, but combining text, graphics, audio and/or video (“Enhanced Electronic Edition”); AND/OR as per Schedule attached
(iii) publication developed and sold as an Application (“Application Rights”), as per Schedule attached.
3. COPYRIGHT
Copyright in all works and relevant content will always remain the 100% property of the Author/Owner.
4. PUBLICATION
(a) The Publisher will publish the Work in the agreed formats to a good professional standard, within [3] months of the date of delivery of the manuscript unless prevented by circumstances beyond its control, but in no circumstances later than [6] months from the date of delivery of the manuscript.
(b) The Publisher will pay all expenses relating to the publication and distribution of the Work including software development, production, and editing of the Work (as applicable on Package details page).
(c) The Publisher shall ensure that it and the third parties dealing with the Work have current and appropriate technologies including that the Territories can be geo-blocked so that the Work can only be accessed by Internet users in Territories and media licensed under this Agreement.
(d) The Publisher will not sublicense the Work or part thereof to any person or entity without the prior written agreement of Author/Owner.
(e) The Publisher shall provide the Author/Owner with a copy of the Electronic Edition prior to uploading or providing to the electronic publisher, so that the Author may check the form and content of the Electronic Edition of the Work
(f) The Publisher (if chosen in the Package Details section) will supply a suitable editor and proofreader who will be limited to 70,000 Words. Any hours spent beyond this will be chargeable at the applicable rates mutually agreed by both parties.
5. TERM
(a) This Contract continues for the Term unless terminated earlier under the Termination Clause.
(b) The Term will automatically roll over for the subsequent 12 months period if 30 days notice is not given prior to the termination date.
6. DELIVERY
The Author/Owner will deliver the Work not later than the Delivery Date or at a later date mutually agreed to by both Parties. Should the Author fail to comply with the production schedule the Publisher can seek to terminate the agreement as per termination clause 20. A minimum of 50% of the membership will be payable or withheld to compensate the Publisher for costs incurred. Additional costs (as mutually agreed) may also apply if incurred on behalf of the Author.
7. ADVANCE
The Publisher will NOT pay the Author/Owner any Advance.
8. ROYALTIES
The publisher will pay to the Author/Owner:
(a) Where Electronic Editions (e-books or printed) are sold by the Publisher an amount of [70] per cent of the net receipts received after account fees and currency conversion;
(d) All Royalties due to the Author/Owner are deemed to be held in trust for the Author/ Owner as the sole beneficiary. Such trust relationship shall survive all the provisions of this Agreement including insolvency of the Publisher.
9. SUBSIDIARY RIGHTS
(a) This Contract does not grant or convey to the Publisher any rights or interests other than those specified in the Contract.
10. COPYRIGHT NOTICE
The Publisher must ensure that the following copyright notice appears in all copies of the Work including all sub-licensed copies:
© [Author/Owner’s name], [Year of first publication]
11. COPYRIGHT INFRINGEMENT
If during the term of this Agreement the Author/Owner or the Publisher believes that the copyright or some proprietary right to the Work is being infringed or affected by another party, written notice shall be given to that party. If, after conference, the Publisher and the Author/ Owner agree to proceed jointly against the infringing party, then the costs and recovery arising shall be shared equally. If no agreement is reached for joint action, subject to the commencing party indemnifying the other party, either party may proceed as it sees fit, bearing all costs and enjoying any money recovered. The party, who declines to proceed, shall, upon being indemnified against all costs in connection with the proceeding, execute all instruments to permit the other party to proceed at its own cost, either in its own name or in their joint names as the law may require. Any monies recovered in respect of any such infringement of copyright will after deduction of all costs and expenses will be divided equally between the Author/Owner and the Publisher. If the Author/Owner believes that the Publisher is infringing copyright or some proprietary right to the Work, they shall give written notice to the Publisher. If no remediation occurs within a reasonable period, the Author/Owner may proceed in accordance with Clause 22.
12. WARRANTIES
(a) The Author/Owner warrants to the Publisher that:
(i) The Work is an original work;
(ii) The Author/Owner is the sole proprietor of the Work;
(iii) The Work does not infringe any existing copyright and has not been published in whole in verbatim form as an Electronic/Digital Edition in the territories covered by this Contract; and
(iv) To the best of his/her knowledge the Work contains nothing defamatory.
(b) The Publisher warrants to the Author/Owner
(i) The Publisher has the right to enter the Contract;
(ii) The Publisher indemnifies the Author/Owner against any loss or damage (including legal costs) occasioned to the Author/Owner in consequence of any breach of contract by the Publisher.
13. MORAL RIGHTS
(a) The Author/Owner asserts his/her moral rights in relation to the Work.
(b) The Publisher must identify the Author/Owner in a prominent manner by including the Author/Owner’s name on the opening screen and in all appropriate publicity material.
(c) The Publisher must ensure that any permitted licensees and assignees of the Publisher:
(i) Respect the Author/Owner’s moral rights in relation to the Work; and
(ii) In particular, not do or fail to do anything which would amount to a derogatory treatment of the work.
14. ROYALTY ACCOUNTS
(a) Royalty accounts will be made up at least every three months and sent to the Author/ Owner and settled within one month of the end of the accounting period covered by the account. Such accounts will show in detail the number of copies sold, downloaded, returned, and all subsidiary rights income. Royalty Statements will comply with the information requirements as set out in the ‘Statement Annexure’ to this agreement. Generally, a limit of $100 per currency / per store applies to most royalty payments so receipt of funds only occurs when these thresholds are met.
(b) Goods and Services Tax (GST)
(i) All royalties payable under this Contract are exclusive of any Goods and Services Tax (GST);
(ii) Where required the Publisher will issue its own Recipient Created Tax Invoice (RCTI) to the Author/Owner;
(iii) If the Author/Owner does not provide their Australian Business Number (ABN) to the Publisher, the Author/Owner acknowledges that the Publisher will be obliged to withhold a proportion of the advances and royalties in accordance with the GST laws.
15. INSPECTION AND AUDIT OF ACCOUNTS
The Author/Owner or the Author/Owner’s authorised representative will have the right, upon written request, to examine, inspect and audit the books of account of the Publisher which relate to the sales, publication, and communication to the public of the Work or sub-licences.
This right will be at the cost of the Author/Owner unless errors of accounting are found to the Author/Owner’s disadvantage, where the cost will be borne by the Publisher.
16. ALTERATIONS
(a) No alterations will be made to the title of the Work without the Author/Owner’s consent.
(b) The Publisher must consult the Author/Owner on editorial decisions and the Publisher must take into account the Author/Owner’s reasonable views in making a decision about such matters. The Publisher will not publish the Work until any reasonable editorial differences have been resolved.
17. FORMAT AND PUBLISHING DECISIONS
(a) The Publisher must consult the Author/Owner about the appearance, price and terms of sale of the Work.
(b) The Publisher must take into account the Author/Owner’s reasonable views on the matters set out in paragraph (a) of this clause and the Publisher must act reasonably in making its decision about such matters.
(c) The Publisher will make a final copy of the electronic/digital work available to the Author/Owner before publication and the Author/Owner will send any corrections without undue delay.
18. MARKETING AND PROMOTION
(a) The Publisher agrees to consult with the Author/Owner on all publicity and promotional activity for the Work.
(b) The Publisher will promote and sell the Work in a professional manner to maximize its market potential.
(c) The Author/Owner will endeavour to be available, on reasonable notice, to assist with the promotion of the Work.
19. AUTHOR/OWNER’S COPIES
(a) The publisher will provide the Author/Owner with 25 printed copies of the Work at no charge. Additional copies are at Author’s expense.
20. TERMINATION AND REVERSION OF RIGHTS
(a) Either party may by one month’s notice in writing to the other party terminate this Contract without prejudice to any claims outstanding or any sub-licences properly granted in the event of:
(i) any breach or non-observance by the other party of any of the terms or conditions in the Contract that has not been corrected before the end of the notice period.
(b) This Contract will automatically terminate without prejudice to any claims outstanding or any sub-licences properly granted in the event of the Publisher going into liquidation (except a voluntary liquidation for the purpose of reconstruction) or becoming Insolvent.
(c) Upon the termination of this Contract for any cause, all rights granted to the Publisher will revert to the Author/Owner for use at any time and the Publisher will return to the Author/Owner all property originally furnished by the Author/Owner.
21. ASSIGNMENT
Unless expressly referred to in this Contract, no assignment of this Contract or any licences granted will be binding upon either of the parties without the prior written consent of the other, provided that the Author/Owner may assign or transfer any monies due or to become due under this Contract. Consent is not required for an assignment of this Agreement in connection with a sale or other disposition of substantially all the assets of the assigning party's business.
22. MEDIATION
In the event of a dispute the parties agree that no later than one month after either party notifies the other that this clause is being invoked:
(a) Author/Owner and Publisher or their representatives (For the purpose of this clause, the term ‘representative’) does not include a legal representative.
will meet to:
(i) identify in writing the issues on which they disagree
(ii) resolve the disagreement.
(b) If the disagreement is not resolved within four hours the parties will:
(i) appoint a mediator*
(ii) identify in writing the issues to be mediated, and
(iii) set a date for the second meeting.
(c) The parties agree their intention at the second meeting is to resolve the dispute. If after four hours no resolution has been reached, either party may resort to litigation.
23. CONTRACT
This Contract constitutes the complete understanding between the parties and no waiver or modification of any provisions will be valid unless in writing and signed by the Author/Owner and the Publisher. The Author/Owner and Publisher agree that the law applicable to this Contract shall be the law in force in New South Wales.