Co-Publishing and Distributing Agreement
Agreement, entered into on _______________________ between __________________________ (hereinafter called the “Co-publisher.”) with mailing address at ______________________________________________________________________________
and Tetrahedron, LLC (hereinafter called the “Publisher” or “Editor/Publisher”), 206 North 4 th Avenue, Suite 147 Sandpoint, ID 83864
Whereas both parties wish respectively to publish, and have published, a work (referred to as the “Work”) provisionally titled:
NOW, THEREFORE, they mutually agree as follows:
1. The Co-Publisher grants to the Publisher during the full term of copyright (including any renewal or extensions thereof):
a. The exclusive right to distribute the Work (through distributors (i.e., Pacific Pipeline, Quality Books, Blackwell Science, Inc., Bookazine, Canadian Master Athlete Federation, and wholesalers including, but not limited to Ingram and Baker & Taylor) in each territory set forth, hereinafter, namely North America (U.S. and Canada);
i. The Publisher and Co-publisher will work together to print, publish, and sell the work in book, and other form, form in a manner that minimizes costs and maximizes revenues for each party; and to share the proceeds received from licenses with 25% going to the Publisher and 75% going to the Co-publisher.
ii. The Publisher agrees to publish, and have printed, the Work on behalf of the parties, in a manner satisfactory to the Co-publisher and by a printer selected by the parties on the basis of service quality and value.
iii. The Co-publisher agrees to pay for any and all printing, art, marketing, and mailing services associated with the printing, promotion/marketing, and order fulfillment of the Work. Whereas the Publisher agrees to supply its services including: professional expertise, editorial guidance, publishing capabilities and galleys, warehousing, and book promotion and distribution resources.
2. This agreement covers the following licenses:
i. License publication of the Work (in complete, condensed or abridged versions) by book clubs, including subsidiaries of the parties to this agreement.
ii. License publication of a reprint edition by another publisher with the consent of the Author/Co-publisher, which will not be unreasonably withheld or delayed. The Author/Co-publisher shall be deemed to have given consent if within twenty (20) days after the forwarding of a written request he or she fails to notify the parties of his refusal to consent;
iii. License publication of the Work in complete, condensed, adapted or abridged versions or selections from the Work in anthologies and other publications, in mail-order and schoolbook editions, as premiums and other special editions and through microfilm. Xerox video digital, audio photographic or other forms of copying, transmission, or recording, now known or eventually created including copying or recording by magnetic, laser, photographic, electronic or any other means on film, microfiche, microfilm, videocassettes, floppy discs, video discs or any other machine readable medium, as well as the broadcast or transmission thereof.
iv. License periodical publication including magazine, newspapers and digests prior to book publication;
v. License periodical publication after book publication;
vi. License, adaptations of the Work for filmstrips, printed cartoon versions and mechanical reproduction;
vii. License, without charge, transcription or publication of the Work in Braille or in other forms, for the handicapped;
ix. For publicity purposes, publish or permit others to publish or broadcast (but not dramatize) by radio or television, without charge, such selections from the Work as in the opinion of the parties may benefit its sale.
vii. To license movie, video, audio, tv, and all other dramatic rights.
ix. For promotional purposes, the right to use author’s name, likeness, and biography.
2. The exclusive right to license in all foreign languages and all countries is maintained by the Publisher who has already negotiated non-exclusive agenting contracts with third parties. However, should these third parties fail to deliver a contract satisfactory to the parties, then, at any time the Co-Publisher may act as an agent for the Work on behalf of the parties.
3. The Author/Co-publisher agrees to deliver two complete copies (original and clean copy) of the manuscript of the Work in the English language of approximately _________ pages in length, satisfactory to the Publisher in form and content, together with any permissions required pursuant to Paragraph 3, and all photographs, illustrations, drawings, charts, maps and indexes suitable for reproduction and necessary to the completion of the manuscript, not later than _______________. If the Author/Co-publisher fails to do so the Publisher shall have the right to supply them and charge the cost directly to the Author/Co-publisher and such costs must be paid by the Author/Co-publisher to the Publisher within one week of the Author/Co-publisher receipt of the Publisher’s invoice for work done. The complete manuscript shall include the following additional items: ____________________________________________________________________________.
a. Timely delivery of the Work in final form is essential to the parties and is the essence of this agreement. If the Author/Co-publisher fails to deliver the manuscript within 45 days of the deadline date as stipulated above, or if any manuscript that is delivered is not, in the Publisher’s sole judgement, satisfactory, the Publisher may terminate this agreement by giving written notice, whereupon the Author/Co-publisher agrees to pay to the Publisher within one month – – all amounts which may have been advanced or spent on behalf of publishing the Work, as detailed hereunder.
b. In the event of a failure by the Author/Co-publisher to deliver a reasonably acceptable finished manuscript and if author/Publisher fails to promptly reimburse the Publisher for monies spent and services rendered on behalf of publishing the Work, the Publisher shall have the right to contract with another writer to finish up the portion of the project left unwritten by the Author/Co-publisher. The Publisher may then charge the Author/Co-publisher’s account for the reasonable costs of such writing services.
c. If because of illness or factors beyond control of the Author/Co-publisher, the Author/Co-publisher is not able to deliver the work, the due date for such delivery will be extended for a reasonable time but not more than 60 days from the original due date. If after the passing of such reasonable time, the Author/Co-publisher continues to fail or is unable to deliver the work or to satisfy the Publisher’s request for changes to the work, the Publisher may give him written notice of intent to terminate on the basis of failure to deliver in a timely fashion. The Publisher may at his sole discretion elect to terminate this agreement at the expiration of said period under the terms and conditions as stipulated in 2b. above.
4. If the Author/Co-Publisher incorporates in the Work any copyrighted material, he shall procure, at his expense, written permissions covering all uses permitted hereunder and these shall be sent to the Publisher on or before the manuscript’s due date. Publisher may charge the Author/Co-publisher for reasonable costs of procuring such permissions if the Author/Co-publisher fails to do so.
5.a. The Author/Co-publisher warrants that he is the sole owner of all the rights granted to the Publisher, that he has not previously assigned, pledged or otherwise encumbered the same; that he has full power to enter into this agreement; that except for the material obtained pursuant to Paragraph 4, the Work is original, has not been published before, and is not in the public domain; that it does not violate any right of privacy or publicity; that it is not libelous or obscene; that it does not infringe upon any statutory or common law copyright; and that any recipe, formula or instruction contained in the Work is not injurious to the user.
b. In the event of any claim, action or proceeding based upon an alleged violation of any of these warranties (i) the parties shall have the right to defend the same through counsel of their own choosing, and (ii) no settlement shall be effected without prior written consent of the Publisher, which consent shall not be unreasonably withheld or delayed, and, (iii) the Author/Co-publisher shall hold harmless the Publisher, any seller of the Work, and any licensee of any subsidiary right in the Work, against any damages finally sustained, including attorney’s fees. The parties shall co-operate fully in the defense of any claims, demands or legal actions against them under the following guidelines:
i) If such claims, demands or legal actions arise solely out of an omission by the Publisher, then the costs related thereto, including reasonable attorney’s fees, will be paid entirely by the Publisher.
ii) If such claims, demands, or legal actions arise solely out of any omission, act or breach of warranty, as defined by clause 5.a. above, by the Author/Co-publisher or Author/Co-publisher’s representative, then the costs related thereto, including reasonable attorney’s fees, will be paid entirely by the Author/Co-publisher.
iii) If such claims, demands or legal actions arise out of any omission or act by the parties, then the costs related thereto, including reasonable attorneys fees, will be shared equally by the parties.
c. If any such claim, action or proceeding is instituted, the parties will promptly inform one another, and the parties shall fully cooperate in defense thereof, and the Publisher may withhold payments of reasonable amounts due the Author/Co-publisher under this or any other agreement between the parties.
d. These warranties and indemnities shall survive the termination of this agreement.
6. The Author/Co-publisher agrees that during the term of this agreement, he will not, without the written permission of the Publisher, publish or permit to be published, within the territory, any material, in book or pamphlet form, based on or competing with material in the Work.
7. Within ____________ months after the Author/Co-publisher has delivered a satisfactory manuscript in conformity with Paragraph 2, the Author/Co-publisher shall forward all monies required to produce the first printing of ________ books to the Publisher who will use this money solely for the purpose of manufacturing the books in such a style and manner, under such imprint and title, and at such price as the parties deem suitable. The Publisher shall not be responsible for delays caused by any circumstance beyond its control. No significant changes in the manuscript shall be made without the consent of the parties, except if the Author/Co-publisher fails or is unable to complete the manuscript. However, in no event shall the parties be obligated to publish a work which in their opinion violates the common law or statutory copyright or the right of privacy of any person or which contains libelous, obscene or vulgar matter. If the Publisher deems it necessary, he shall have the right to have the work read for libel, and this expense would be shared with 75 % being paid by the Author/Co-publisher and 25% being paid by the Publisher.
8. The Author/Co-publisher agrees to read, revise, correct and return promptly, in three weeks or less, all proofs of the Work and to pay in cash (check), or, at the option of the Publisher, to have charged against him, the costs of new alterations, in type or in plates, required by the Author/Co-publisher.
9. The Publisher shall copyright the Work in the name of the Author/Co-publisher, in the United States, in compliance with the Universal Copyright Convention, and apply for renewals of such copyright. The Publisher agrees to arrange for the sale of the Work in Canada. If the Publisher adds illustrations or other material, and if copyright is in the Author’s name, the Author/Co-publisher agrees, upon request, to assign the copyright of such material. The Author/Co-publisher shall notify the Publisher in writing within one week of any arrangement of publication or disbursement of any rights whatsoever that the Author/Co-publisher may have retained.
In the event of a periodical publication, if the copyright shall be in the name of any person other than the Author/Co-publisher, he shall promptly deliver to the Publisher a legally recordable assignment of such copyright or of the rights granted in the event of a publication outside the United States, promptly thereafter, the Author/Co-publisher shall furnish to the Publisher three copies of the first published work, and the expected date of such publication.
10. The Publisher shall pay the Author/Co-publisher no advance against royalties as this represents a limited partnership and co-publishing agreement.
11. The Publisher shall pay to the Author/Co-publisher seventy-five (75) percent of the Publisher’s net proceeds (monies received minus expenses) for all published editions.
a. Special Sales i. The Author/Co-publisher, agrees to refer inquiries for export sales outside the United States, its territories and dependencies, or inquiries from consumers through the medium of mail order, or for bulk sales outside ordinary trade channels (herein referred to as “special sales”), that result directly from the Publisher’s marketing and advertising efforts, to the Publisher who will fulfill such orders and pay the Co-publisher seventy-five (75) percent of the net revenue (that is income minus expenses) resulting from such orders. ii. Book Club sales will be considered “special sales” and provided for as described in ii above.
iii. On copies sold in bulk to organizations other than book clubs for the purpose of achieving distribution in special markets, such as the religious market, these too will be considered as “special sales” and provided for as described in i. above.
b. If published as a MASS-MARKET PAPERBACK edition: iv. The parties agree to treat these as “special sales” provided for and described in section 11. a.i. above.
c. If published as a TRADE PAPERBACK edition: v. The parties agree to treat these as “special sales” provided for and described in section 11. a.i. above.
12. The Author/Co-publisher agrees to spend a minimum of $_________ in advertising and marking of the first books printed within the first six months of printing, and subsequently _______ percent of profits from books sold on a continuing basis. The Publisher also agrees to include in all display advertising: (a) the availability of the Work, and (b) information on the availability of the Author/Co-publisher for presentations and seminars. In return for this, twenty-five (25) percent of the honorariums and speakers fees generated as a result of this advertising and Publisher referral will be paid as agency commission by the Author/Co-publisher to the Publisher (i.e., the standard speaker’s bureau fee). In addition, twenty-five (25) percent of profits arising from “back-of-the-room” sales of the Work associated with Publisher referred presentations shall be paid to the Publisher by the Author/Co-publisher.
13. The Author/Co-publisher agrees to notify the Publisher promptly of the disposition of any right which the Author/Co-publisher has retained.
14. The parties shall render semi-annual statements of account to the first day of April and the first day of October, and shall mail such statements during the July and January following the first royalty period that covers at least six months of the book’s publication, together with checks in payment of the amounts due thereon. Should the Author/Co-publisher or Publisher receive an overpayment from copies reported sold but subsequently returned, the parties may deduct such overpayment from any further sums due the parties, or may request the indebted party to repay such amount within 30 days following written notice. Upon written request, the parties may examine each others accounting records through a certified public accountant insofar as they relate to the sale or licensing of the Work. Such examination will be allowed once each year during normal business hours. The parties shall notify one another, in writing, of such requests to conduct such examinations no later than thirty (30) days prior to the date requested for such examinations. Statements not challenged within 60 days of receipt shall be deemed acceptable by the parties. In the event a statement is challenged, the parties shall have the right to see a copy of the contesting party’s accountant’s or representatives’s official report.
15. With respect to each edition of the Work published hereunder, the following shall be applicable:
a. If, in the opinion of the Publisher, any edition of the Work shall cease to have a remunerative sale, the Publisher shall be at liberty to dispose of (“remainder”) all or part of the existing stock thereof and will pay to the Author only those royalties owed him under section 11 above. In any event, the Publisher shall make no such remainder sale without first offering copies to the Author/Co-publisher. In such an instance the Author/Co-publisher shall respond to the Publisher within 30 days of his intent, otherwise the Publisher is free to do what he pleases the remaining books.
b. The Author/Co-publisher’s right to royalty or other payments hereunder shall be subject to the Publisher’s prior right to deduct any and all advances payable by the Publisher hereunder.
c. In determining the “net amount received” by the Publisher for special sales, order fulfillment including shipping or mailing charges are considered appropriate expenses to be deducted from gross revenue (as well as excise, state, local and similar taxes if and when applicable).
16. The Author/Co-publisher agrees to submit to the Publisher his next book-length work based on detailed outline and sample chapters, before submitting the same to any other publisher. The Publisher shall be entitled to a period of six weeks after the submission of the outline or completed manuscript, which period shall not commence prior to one month after the publication date of the Work covered by this agreement, with which to notify the Author/Co-publisher of its decision. If within thirty (30) days thereafter the parties are unable in good faith to arrive at a mutually satisfying agreement for such publication, the Author/Co-publisher shall be free to submit his manuscript elsewhere, provided, however, that he shall not enter a contract for the publication of such manuscript with any other publisher on terms less favorable to the Author/Co-publisher than those offered by the Publisher and provided that the Publisher has the right to match any bonafide competing offer, within thirty (30) days after written notification by the Author/Co-publisher. Publisher may request to see a written copy of any bonafide offer from any competing publisher.
17. On publication, the Publisher shall receive ______ free copies from the Author/Co-publisher to facilitate marketing and distribution of the Work. Copies for the Publisher’s use in regard to the above, will not be included in royalty calculations.
18. If the parties fail to keep the Work in print and the either of the parties makes written demand of the other to reprint it, the parties shall, within sixty (60) days after the receipt of such demand, notify each other in writing of their intent to comply. Within six (6) months thereafter, the parties shall reprint the Work unless prevented from doing so by circumstances beyond their control. If the parties fail to notify each other within sixty (60) days regarding compliance, or within six (6) months after such notification the parties decline or neglect to reprint the Work, then this agreement shall terminate and all rights granted hereunder, except those deriving from the option in Paragraph 16, shall revert to the Author/Co-publisher, subject to licenses previously granted, provided the Author/Co-publisher is not indebted to the Publisher for any sum owing to it under this agreement. After such reversion, the parties shall continue to participate to the extent set forth in this agreement in monies received from any license or renewal of any license previously granted by it. Upon such termination, the Author/Co-publisher shall have the right for thirty (30) days thereafter to purchse the plates, if any, at one-half of the original cost of the film and type-setting.
If the Work is under contract for publication or on sale in any edition in the United States, it shall be considered to be in print. A Work shall not be deemed in print by reason of a license granted by the Publisher for the reproduction of single copies of the Work.
19. Except for loss or damage due to its own negligence, the parties shall not be responsible for loss of or damage to any property by the Author/Co-publisher.
20. In the absence of written request from the Author/Co-publisher prior to publication for their return, the parties, after publication of the Work, may dispose of the original manuscript and proofs.
21. If the copyright of the Work is infringed, and if the parties proceed jointly, the expenses and recoveries, if any, shall be shared equally, and if they do not proceed jointly, either party shall have the right to prosecute such action, and such party shall bear the expenses thereof, and any recoveries shall belong to such party, and if such party shall not hold the record of the copyright, the other party consents that the action be brought in his or its name.
22. If (a) a petition in bankruptcy is filed by either of the parties, or b) a petition in bankruptcy is filed against the parties and such petition is finally sustained, or (c) a petition for an arrangement is filed by either of the parties or a petition for reorganization is filed by or against either party, and an order is entered directing liquidation of either party as in bankruptcy, or (d) either party liquidates their businesses for any cause whatever, the Author/Co-publisher may terminate this agreement by written notice and thereupon all rights granted by him hereunder shall revert to him. Upon such termination, the Author/Co-publisher, at his opinion, may purchase the plates as provided in Paragraph 17 and the remaining copies at one-half of the manufacturing cost, exclusive of overhead.
If this option is not exercised within sixty (60) days after the happening of any one of the events above referred to, affecting either party, the Trustee, Receiver, or Assignee may destroy the plates and sell the remaining copies on hand subject to the royalty provisions of Paragraph 11 above.
23. Any sums due and owing from the Author/Co-publisher to the Publisher, whether or not arising out of this agreement, may be deducted from any sum due to or to become due from the Publisher to the Author/Co-publisher pursuant to this agreement. For the purposes of this Paragraph, a non-repayable unearned advance made to the Author/Co-publisher pursuant to another agreement shall not be construed as being a sum due and owing, unless the Author/Co-publisher is in default under such other agreement.
24. This agreement shall be governed and interpreted according to the law of the State of Massachusetts applicable to agreements entered into and to be performed entirely within such State.
25. It is a condition of the rights granted hereby that the parties agree that all copies of the Work published by them that are distributed to the public shall bear the copyright notice prescribed by the applicable laws of the United States of America. The Author/Co-publisher hereby appoints the Publisher as his attorney-in-fact in his name and in his stead to execute all documents for recording in the Copyright Office evidencing transfer of ownership in the exclusive rights granted to the Publisher hereunder.
26. This agreement shall be binding upon the heirs, executors, administrators and assigns of the Publisher/Author/Co-publisher, and upon the successors and assigns of the Publisher.
27. This agreement constitutes the complete understanding of the parties. No modification or waiver of any provision shall be valid unless in writing and signed by both parties.
IN WITNESS WHEREOF the parties have duly executed this agreement the day and year first above written.
For the Author/Co-publisher: For Tetrahedron, LLC.:
By ____________________________________ By__________________________________
The Author/Co-Publisher Leonard G. Horowitz