COMMISSIONED [FAMILY BIOGRAPHY] [HISTORICAL WORK] AND PUBLISHING AGREEMENT

Transcription

1 COMMISSIONED [FAMILY BIOGRAPHY] [HISTORICAL WORK] AND PUBLISHING AGREEMENT THIS COMMISSIONED [FAMILY BIOGRAPHY] [HISTORICAL WORK] AND PUBLISHING AGREEMENT (this Agreement ) is made as of, 20 (the Effective Date ), by and among BREATHED-BRIDGES-BEST, LLC, a Virginia limited liability company ( Company ), David P. Bridges ( Author ), and ( Client ). Recitals: A. Author is engaged in the business of researching and writing family biographies and historical works for clients on a commissioned basis. B. Company is engaged in the business of publishing such works. B. Client desires to have Author research and write, and Company publish, [Client s family biography] [a historical work relating to ] (the Work ). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. Scope of Work. Client hereby engages Author to conduct research and interviews gather material sufficient in Author s sole discretion to write the Work, and write the Work, upon the terms and conditions of this Agreement. Client hereby engages Company to publish the Work, upon the terms and conditions of this Agreement. 2. Timeline for Work. a. By entering into the Agreement, Client and Author have made a mutual decision to write the Work. Author shall begin writing the Work upon execution of this Agreement. b. Author shall endeavor to complete a draft manuscript of the Work and deliver the manuscript to Client within months after the Effective Date. c. Client will review the Work and suggest changes to the Work for revision by Author (a Revision Request ) as soon as reasonably possible, but in no event more than thirty (30) days after Author submits the draft manuscript to Client. Author may, but shall not be required to, make any or all of such suggested changes. If a Revision Request is not received by Author within such thirty (30) day period, the Work shall be deemed accepted by Client. Any information not listed in the Revision Request shall be deemed a representation and warranty by Client that, to the best of Client s knowledge, the information contained in the Work is accurate. d. Within ( ) days after receipt of the Revision Request, Author shall submit a final draft of the Work to Client for review, comments and suggestions. Client shall submit another Revision Request to Author as soon as reasonably possible, but in no event more than thirty (30) days after Author submits the final draft manuscript to Client. Author may, but shall not be required to, make any or all of such suggested 1

2 changes. e. When Author determines in its sole discretion that the Work is ready for publishing, Author shall submit the Work to Company for publishing. Company shall use commercially reasonable efforts to cause the Work to be published within ( ) months after Author has submitted the Work to Company for publishing. 3. Payment of Fees. After the preliminary research has been completed and a mutual decision has been made to further research, write and publish the Work, evidenced by the execution of this Agreement, Client shall pay to Company the sum of [insert the Fee] (the Fee ), exclusive of costs and expenses, as follows: a. Research Phase. Client shall pay to Company 40% of the Fee upon execution of this Agreement. b. Writing Phase. Client shall pay to Company 40% of the Fee upon Author s delivery of a draft manuscript to Client. c. Publishing Phase. Client shall pay to Company 20% of the Fee upon Company s delivery of Client s copies of the printed books to Client. 4. Costs and Expenses. Client shall pay for all actual costs and expenses relating to the Work, including without limitation, a. Research and Writing Phases. All expenses associated with Author s research and writing, including without limitation, mileage, lodging, meals, office supplies, copying, photography, research materials, postage, shipping materials, etc. b. Publishing Phase. All expenses associated with the publishing of the Work, including without limitation editing, typing, graphic design, layout, offset printing, indexing, putting the Work in desktop-publishable ready form, shipping, attaining copyrights, etc., any or all of which may be subcontracted by Company. c. Marketing Phase. All expenses associated with the marketing of the Work. 5. Payment of Costs and Expenses. Upon execution of this Agreement, Client shall pay to Company a $ retainer against which Company will bill expenses relating to the Work. Company shall submit an itemized list of such expenses to Client on a monthly basis. At such time as the retainer balance is reduced to $, Client shall reinstate the retainer to the initial level. For certain expenses, Company may submit an invoice or itemized list of expenses directly to Client and Client shall within fifteen (15) days, pay such invoice directly or reimburse Company, at Company s option, for such actual costs and expenses relating to the Work. 6. Assignment and Transfer of Rights. Client grants, assigns and transfers to Company the exclusive, worldwide, and irrevocable right to: 2

3 a. print, publish and sell the Work in the English language in book or downloadable online form, including all revisions and later editions, for the full term of Author s copyright and all extensions of Author s copyright; b. reprint all or portions of the Work electronically for marketing purposes deemed desirable or necessary by Company, which may include saving the work on CD-ROM, optical disks, or any other technology now known or later developed; and c. sell or license to others any of the rights in Paragraphs (a) and (b) above, including, without limitation, the rights to reproduce the Work in any form by any mechanical, electronic, or other means now known or later developed. Client hereby grants, assigns and transfers to Company all other rights, title and interest whatsoever in and to the Work, including without limitation, video, motion picture and television rights, dramatic rights, musical rights, merchandising rights, intellectual property rights, and rights to payment of royalties. 7. Representations and Warranties of Company. Company represents and warrants the following to Client as of the date of publication, to the Company s knowledge: a. Author is the sole author and proprietor of the Work; b. the Work is original and not in the public domain; c. the Work will contain no matter which is libelous or otherwise unlawful; and d. neither the Work nor the title, if the title is selected by Company, will infringe any copyright or proprietary right of any third party. 8. Representations and Warranties of Client. Client represents and warrants the following to Author and Company as of the date of publication, to the Client s knowledge: a. all information provided by and about Client or Client s family, friends, colleagues, neighbors, etc. is true and accurate in all material respects; b. no information has been intentionally omitted that makes any portion of the Work materially misleading or false; and c. no photos, drawings, charts, tables, or other writings provided by Client infringe on the rights of third parties. 9. Photos, Illustrations, and Other Graphics. Client shall cooperate with Company in obtaining photographs, illustrations and other graphics, and permission to use such photographs, illustrations and other graphics, that Company deems necessary or desirable to complete the Work. Company shall obtain any permissions necessary to reprint in the Work any such material, whether textual or graphic, which is the copyrighted property of others. Company will retain these materials in case of need for future updates, reprints, etc. 10. Publishing. Company shall publish the Work at Client s expense. Company may, at its option and at Client s expense: 3

4 a. publish the Work in the form, style, size, design, type, manner, and paper it deems best suited to the sale of the Work; b. edit and revise the Work; c. set or alter the title and suggested prices at which the Work will be sold; d. determine the date of publication, the method and means of advertising, promoting, and selling the Work; and all other publishing details, including the number of copies to be printed and whether from plates or type or other process; e. publish subsequent and revised editions whenever, in its judgment, it is deemed advisable, and f. decide if and when reprints will be made, how long manufacturing materials will be preserved, and when these materials will be destroyed. 11. Copyright. Author shall register the copyrights in connection with the Work in Author s name in the United States Copyright Office. 12. Marketing. a. Company may publish or permit others to publish any selections, digests, abridgments, serializations, syndications, and mechanical, visual, and sound reproductions or recordings it thinks proper if, in the judgment of Company, it will promote the sale of the Work. b. Company may, at Client s expense, promote and publicize the Work in any manner Company deems appropriate in its sole discretion, including (i) using Client s name and likeness, (ii) using Author s name, likeness, website and biography, and (iii) conducting interviews, book parties and signings, readings, and similar promotional or marketing events. Nothing contained herein shall obligate Author or Client to conduct such personal appearances. 13. Default by Client. If Client fails to pay when due the fees, costs and expenses set forth in this Agreement, Client shall be in default of this Agreement, and Author or Company may terminate this Agreement upon thirty (30) days notice to Client. 14. Default by Author or Company. a. Writing. If Author fails to deliver a manuscript to Client on or before the date specified in Section 2.b. above, Client may give Author notice of Client s intent to declare this Agreement terminated if delivery has not occurred within one hundred fifty (150) days after such notice. If a manuscript has not been delivered to Client by the end of such one hundred fifty (150) day period, Client may declare this Agreement terminated as Client s sole remedy, no further payments shall be due from Client, and Author shall deliver to Client all research and written materials relating to the Work as of the date of termination. b. Publishing. If Company fails to deliver Client s copies of books to Client on or before the date specified in Section 2.e. above, Client may give Company notice of Client s intent to declare this Agreement terminated if delivery has not occurred within ninety 4

5 (90) days after such notice. If Client s copies of books have not been delivered to Client by the end of such ninety (90) day period, Client may declare this Agreement terminated as Client s sole remedy, and no further payments shall be due from Client. In such event, the rights granted to Company in this Agreement shall survive the termination of this Agreement. 15. New Editions. Client may request that Author prepare material needed for new editions of the book, at a price and upon terms to be mutually agreed upon. 16. Indemnification. Client shall hold harmless and indemnify Author, Company and their respective representatives, licensees, distributors, members, employees, successors and assigns ( Indemnitees ) from and against any and all liabilities, damages, losses, claims, demands, assessments, actions, causes of action, and costs (including reasonable attorneys' fees and expenses), arising out of or resulting from the Work, including without limitation, (a) actual or alleged violation of any copyright, trademark, service mark, certification mark, patent, confidential information, privacy, publicity or other intellectual property rights, or (b) a breach of any of Client s representations and warranties contained in this Agreement. 17. Copies of Work. Company will deliver ( ) copies of the published Work to Client without charge. Client may obtain additional copies at a discount of percent ( %) off the suggested retail price, plus actual shipping costs, if any. 18. Out of Print. If at any time the demand for the Work is not sufficient, in the opinion of the Company, to render its continued publication profitable, Company may declare the Work out of print. Company agrees not to remainder any copies of Work without offering Client an opportunity to purchase them at a price to be determined by Company and Client, as set forth below in Section Remaindering. After one (1) year from the date of publication, Company may at its sole discretion, remainder copies of the Work. Company agrees to offer Client the remaining copies of the edition at a price to be determined and agreed upon before remaindering. If Client does not, within thirty (30) days from receipt of the offer, notify Company in writing that he or she will purchase the remainder, the remaining part of the edition may be destroyed by Company or sold to a third party. 20. Bankruptcy, etc. of Company. In the case of bankruptcy or liquidation of Company for any reason whatever, Client shall have an option for ninety (90) days to buy the publication rights, plates or film, bound copies, and sheets at their fair market value, to be determined promptly by agreement, and all rights provided to Company by this Agreement will transfer without charge to Client upon Client s written request, and this Agreement will terminate. 21. Miscellaneous. a. Severability. If any provision of this Agreement is unenforceable, the remainder of this Agreement shall continue in effect and be construed as if the unenforceable provision had not been contained in this Agreement. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. b. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and merges all prior negotiations, offers, representations, warranties, and agreements with respect to its subject matter. No course of prior 5

6 dealing between the parties, no usage of trade, and no outside evidence of any nature shall be used to supplement, interpret, or modify any of the terms of this Agreement. c. Modification, Waiver. This Agreement may be modified only by a writing signed by all parties. No waiver of any part of this Agreement, including this Section, shall be binding on the waiving party unless the waiver is in writing and signed by the waiving party. No waiver shall apply to any circumstance other than that in which it is given. No waiver or approval given by any party shall constitute a waiver or approval of any similar matter in the future. The acceptance of performance or partial performance with knowledge of a default shall not be a waiver of that default. d. Governing Law. All matters regarding the formation, interpretation, and enforcement of this Agreement shall be governed by Virginia law, excluding its laws relating to choice of law. e. Venue. Regardless of what venue would otherwise be permissive or required, the parties stipulate that all actions arising under or related to this Agreement shall be brought in the state or federal courts located in the city or county where the author, David P. Bridges, resides, the parties agreeing that such forum is mutually convenient and bears a reasonable relationship to this Agreement. The parties irrevocably submit to the jurisdiction of such courts for the purpose of any suit, action or other proceeding arising under or related to this Agreement. f. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective heirs, personal representatives, successors and assigns. g. Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be given by (1) hand delivery, (2) nationally recognized overnight courier, or (3) sent by the United States Mail by certified mail, return receipt requested, postage prepaid, and addressed as set forth below (or such other address as the parties may, by notice, specify), and shall be deemed given when hand delivered, one day after deposit with a nationally recognized overnight courier, or three days after deposit with the United States Postal Service: If to Client: If to Company: Breathed-Bridges-Best, LLC Attn: David P. Bridges 2323 Carolina Ave., SW Roanoke, VA h. Headings. The headings contained in this Agreement are for the convenience of the parties only, and are not a part of the substantive agreement of the parties nor shall they affect the meaning or interpretation of any provision of this Agreement in any way. i. Third Party Beneficiaries. The provisions of this Agreement are intended to benefit only the parties to this Agreement. No person not a party to this Agreement shall be deemed to be a third party beneficiary of this Agreement, nor shall any such person be empowered to enforce the provisions of this Agreement, except to the extent such a person becomes a permitted assignee of one of the parties. 6

7 j. Drafting Ambiguities. Each Party to this Agreement has reviewed and revised this Agreement. The normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party will not be employed in the interpretation of this Agreement. k. Holidays, etc. If the last day for taking any action under this Agreement falls on a Saturday, Sunday, or banking holiday, the time for taking the action shall be extended to the next regular business day. l. Counterparts. This Agreement may be executed in multiple counterparts. When at least one copy of this Agreement has been executed by, and delivered to, each party to this Agreement, this Agreement shall be in full force and effect, and all of the counterparts shall be read together as a single agreement. m. Facsimile Signatures. Facsimile signatures shall be considered original signatures for the purpose of execution and enforcement of the rights delineated in this Agreement. n. Advice of Counsel. Each person or entity executing this Agreement (a) acknowledges that this Agreement contains legally binding provisions, (b) has had the opportunity to consult with legal counsel of his, her or its choice, and (c) has either consulted legal counsel or consciously decided not to consult legal counsel. WITNESS the following signatures and seals on the date written above: COMPANY: BREATHED-BRIDGES-BEST, LLC, a Virginia limited liability company By: David P. Bridges, Managing Member AUTHOR: David P. Bridges CLIENT: 7