BEST SHORT STORIES OF PHILADELPHIA
This PUBLISHING AGREEMENT (the "Agreement") is made between Toho Publishing LLC, a Pennsylvania limited liability company, and Author.
WHEREAS, Author has written an original work of authorship as provided by the Copyright Act of 1976, to be included in the book “Best Short Stories of Philadelphia” (the “Work”); and
WHEREAS, Publisher desires to publish and distribute the Work written by Author; and
WHEREAS, Author desires to have Publisher publish and distribute the Work;
NOW THEREFORE, in consideration of the premises set forth, Publisher and Author (collectively referred to as the “Parties”) hereby agree with respect to the Work as follows:
1. The Grant and the Territory
Author grants to Publisher during the full term of copyright and any renewal or extensions thereof (the “Term”), the exclusive rights to publish and distribute the Work, including the right to exercise, license or assign the rights set forth in paragraph 2, throughout the world (the “Territory”) in the English language and all other languages.
2. Subsidiary Rights
(a) The Publisher shall have the right, in the Territory, to exercise the following rights in the Work or to assign or license such rights upon such terms as Publisher deems advisable: 1) The Work production and publishing rights, 2) release of eBook rights, 3) right to make any and all efforts to promote the Work with language reasonably approved by the Author.
(b) Any grant of first or second serial rights shall specifically prohibit the licensee from reproducing all or a substantial portion of the Work.
(c) Publisher may license others to publish the Work in Braille or other forms for the handicapped.
(d) Publisher may authorize copyright and give permissions and/or clearance to third party 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 Work.
(e) 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 and/or sale of the Work.
(f) Publisher retains the right to a percentage of net profits derived from any motion picture, dramatic, and television rights based on the Work as provided by paragraph 4. Author agrees that the party who controls motion picture, dramatic and television rights is solely authorized to publish and to license others to publish, in any form, excerpts, summaries and serializations, none to exceed five hundred (100) words in length, of motion picture, television, stage and other dramatizations based upon the Work for use in advertising and promotion of any such dramatization, and not for resale. The party who authorizes such publication shall take all steps necessary to protect the copyright in the Work.
(g) The Publisher shall notify the Author promptly after each request for disposition of rights, but inadvertent failure to do so will not be deemed a breach of this Agreement. The Publisher shall provide the Author with copies of any license agreements relating to the Work and Authors and Publisher will come to reasonable, mutually agreed upon decision with respect to each request.
(h) Publisher shall have the right to license the rights set forth in subparagraph (a) to Publisher's parent, subsidiaries, affiliates and divisions, provided that the terms for such license are no less favorable to the Author than the terms which Publisher in its reasonable judgment would accept from an unrelated third party licensee for the same rights. The Publisher shall consult with the Author on any such licenses, but final decision with respect with said rights shall rest with the Publisher.
(i) The Author will not grant to any other party permission, authority, right, or license for publication or distribution of the Work in the open English language market in any edition sooner than publication of such edition in the United States.
(j) Publisher will provide in its licenses for foreign language editions that the licensee will make a faithful and accurate translation of the Work. The Author retains the right to approve all translations.
(k) In the event the Publisher fails to license British Commonwealth rights or foreign language rights in the Work within two years after first publication thereof, then such rights shall revert to the Author on Author's written request, but Publisher shall revert foreign language rights only with respect to such languages or countries that have not been licensed.
3. Delivery of the Work
The Author is deemed to have delivered to the Publisher one copy of the Work in its final form, and any required fully executed permissions, on or before any requested date.
Royalty Payments: All Royalty shall be divided in equal amounts among the Authors and paid by the Publisher as set forth below:
(a) Amazon sales: Fifty percent (50 percent) of royalties paid by Amazon to the publisher for every edition (audiobook, hard cover, paperback, kindle version or other forms that might be in existence in the future).
(b) Toho Publishing website and retail sales: ten percent (10 percent) of the retail price on all copies sold.
In addition, Author shall pay Publisher ten percent (10%) of any “net profits” (as that term is defined herein) arising from Author’s sale of ancillary merchandise or from Author’s grant of rights for a motion picture, dramatic work, or television based in whole or in part on the Work according to pay periods provided in paragraph 6.
5. Special Royalty Provisions
With respect to each edition of the Work published as a book/journal, the following shall be applicable:
(a) no royalty shall be payable on copies damaged or destroyed or on copies furnished gratis for review, publicity, promotion, sample or similar purposes;
(b) no royalty shall be payable on sales by Publisher to its parent, subsidiaries, affiliates, or related divisions for resale, but any resale thereby shall be deemed a sale by Publisher subject to the applicable royalty herein provided;
(c) 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 of royalties. The difference between the two prices enables the Publisher to recoup its freight costs.
(d) when the Publisher in its sole discretion determines that copies of the Work are not readily salable at regular prices within a reasonable time, the Publisher may sell remainder copies of the Work (but not earlier than twelve  months from the publication date unless it is a "remainder-in-place" (as that term is defined herein), which may occur at any time) or dispose of such copies as surplus at the best price obtainable. Publisher shall make no remainder sale (other than a remainder-in-place 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.
(e) any advance royalties or other sums paid to or on behalf of the Author under this Agreement, and any amounts due from the Author to the Publisher under this Agreement, may be applied in reduction of any amounts payable to Author under this Agreement;
(f) in the event of any overpayment by Publisher to Author, Publisher may, in addition to any other remedies available to it, recoup such overpayment from any sums due to Author under this Agreement provided that reasonable prior notice of such overpayment by Publisher is given to Author;
(g) any amounts payable to the Author hereunder shall be subject to such reasonable reserve for returns of copies of the Work as the Publisher shall establish in its reasonable discretion. Following the fourth full accounting period after publication, Publisher's reserve for returns shall not exceed twenty percent (20%) of the total copies theretofore shipped and not returned, except that (i) after each subsequent substantial printing, the reserve may be reasonably increased above twenty percent (20%) for four additional accounting periods, (ii) Publisher may maintain a reserve in excess of twenty percent (20%) which reserve is equal to the actual percentage of returns in the preceding period or consecutive periods, and (iii) Publisher may maintain a higher reserve for any period preceding or during which it is expected that the Work will be or is out of print or is remaindered. Reserves shall be maintained separately with respect to each edition (hardcover, paperback, etc.);
(h) if the Publisher exercises rights for which royalties are not specifically set forth in this Agreement, then royalties shall be paid to the Author at rates to be negotiated in good faith and agreed upon by Author and Publisher.
6. Royalty Statements
(a) Publisher shall render royalty statements and make accounting and royalty and other payments to the Authors (i) in September for the preceding period January 1st/June 30th and (ii) in March for the preceding period July 1st/December 31st. Publisher may from time to time change such accounting periods provided no longer than six months elapses between any two accountings to the Authors. If for any royalty period the current period total activity in the Authors’ account for the Work is less than fifty dollars ($50), Publisher may defer the rendering of payment until such royalty period as the cumulative activity since the last statement exceeds such amount.
(b) Royalty statements shall state the number of copies sold and returned during the period covered and the reserve for returns being held by the Publisher. If the Author so requests in writing, the Publisher shall, within sixty (60) days after its receipt of such request, advise the Authors in 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 Authors, as well as the approximate number of salable copies on hand at the end of said period. The Publisher shall at an Author request provide that Author with a final statement of account, incorporating the information required in this provision, upon termination of this Agreement.
(c) Statements rendered hereunder shall be final and binding upon the Authors unless objected to in writing, setting forth the specific objections thereto and the basis for such objections, within one (1) year after the date the statement was rendered.
7. Examination of Publisher's Books and Records
Any of the Authors or the Author/Authors’ representative may, upon written request not more than once each year, conduct a reasonable examination of the books and records of the Publisher insofar as they relate to the Work for the period of one (1) year immediately preceding such examination. Such examination shall be on Publisher's premises at a time convenient to Publisher, but no later than ninety (90) days after Author/authors’ request therefore, and shall be at Author/Author's expense.
8. Correction of Proofs
Publisher shall furnish each Author with one set of galleys or other first proofs and, at its option, subsequent proofs, and the Author shall return each set of proofs with Author’s corrections to the Publisher within seven (7) days of receipt thereof. The Publisher also shall proofread the proofs. If an Author shall fail to return the corrected proofs within the seven (7) day period herein specified, the Publisher may publish the Work without the Author's approval of the proofs. However, if Author is unable to return the corrected proofs within the provided period, Author may request and Publisher may grant, in its sole discretion, that the period be extended for another seven (7) day period.
9. Cost of Author's Alterations
If, in the correction of proofs the Author requests changes from the text of the manuscript that do not result from errors by the Publisher, the Author shall bear the cost of such changes over fifteen percent (15%) of the original cost of composition, as follows: (a) Author shall pay such costs upon receipt of an invoice from the Publisher; (b) Publisher may withhold a portion of any advances payable to the Author under this Agreement and deduct such costs from said advances; or (c) 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 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.
(a) The Publisher shall publish the Work in Book form within six (6) months after execution of this Agreement. Publication shall be in any edition and under any imprint of Publisher or its affiliates that Publisher elects.
(b) Publisher shall have the right to use the name, pseudonym, approved portrait and approved picture of and biographical material concerning Author in and on the Books(s) derived from the Work, in the advertising, publicity and promotion thereof, and in connection with any rights granted hereunder. Author shall furnish Publisher, free of charge, original photographs of Author, which Publisher may use for such purposes without additional payment to or permission from any third party. The Author shall have the right to approve the biographical information concerning the Author not provided by the Author to be used by Publisher in connection with the Work, such approval not unreasonably to be withheld or delayed.
(c) The title of the Book derived from the Work as set forth on page one (1) may be changed by mutual agreement of the Author and the Publisher.
(d) The Publisher may publish and authorize others to publish extracts of the Work without compensation for promotional purposes. If compensation is received, it shall be equally shared by Authors and Publisher.
(a) The Publisher shall identify the Authors as the owners in the copyright in the Work and may register such copyrights in the United States in the name of the Authors under one copyright identification number.
(b) The Publisher shall identify the Authors as the owner of the copyright in the audio edition of the Work. The Publisher shall be identified as the owner of the production copyright in the audio edition of the Work. Author hereby assigns to Publisher, and Publisher shall own, all right, title, and interest in and to the audio edition of the Work and all additions, to alterations of or recordings related thereto.
(c) The Publisher shall print in each copy of the 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.
(d) Any agreements made by the Author or by the Publisher to dispose of any rights in the Work shall require the licensee or grantee to take all necessary and appropriate steps to protect the copyright in the Work. Whichever party controls first serial rights in the Work will use best efforts to require any licensee of such rights to include an acknowledgement accompanying the published excerpt stating that the excerpt is from an upcoming Work to be published as a Book by the Publisher and setting forth the title of the Work, Authors, and Publisher by name.
(e) The Publisher may take such steps as it deems appropriate to copyright the 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 Authors may copyright the Work in any foreign country if the Publisher fails to take steps to obtain such a copyright within thirty (30) days after receiving a written request from the Author to do so.
(f) Author hereby appoints Publisher to be Author's attorney-in-fact to execute and to file any and all documents necessary to record in the Copyright Office the assignment of exclusive rights made to Publisher hereunder.
12. No Obligation to Publish
Notwithstanding anything contained herein to the contrary, the Publisher shall not be obligated to publish the Work as a Book if, in the sole and absolute judgment of its legal counsel, whether before or after acceptance thereof, the Work contain libelous or obscene material, or publication may violate the right of privacy, common law or statutory copyright, or any other right of any person or entity. 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 which shall apply to all material in the Work, whether or not changed at the request of Publisher's legal counsel.
13. Delays in Publication
(a) The Publisher, in its sole and absolute discretion, shall have the right to reschedule publication of the Work beyond the time set forth in paragraph 10(a) for a reasonable time. If publication of the 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 Work as a Book within sixty (60) days after the date of such notice, then all of the Publisher's rights in and to the Work shall terminate at the end of such sixty (60) day period; and if, in such event, the Publisher shall fail to publish the Work as a Book within such sixty (60) day period, all of the Publisher's rights in and to the 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.
(b) If publication is delayed beyond the time set forth in paragraph 10(a) because of acts or conditions beyond the control of the Publisher or its suppliers or contractors, including (by way of illustration and not by way of limitation) war, shortages of material, strikes, riots, civil commotions, fire or flood, the publication date shall be extended to a date six months following removal of the cause of the delay.
14. Out of Print Termination
If at any time after the expiration of two (2) years from the publication date, the Publisher allows all of its editions of the Work to go out of print and such status continues in effect for six (6) months after the Author has made a written request for Publisher to put the Work back into print and if there is no U.S. English language reprint edition authorized by Publisher available through regular trade channels 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 for such previously granted licenses. In the event of such termination, the Author shall have the right to purchase any available plates or film of the Work at cost, and/or any remaining copies or sheets of the Work at cost. If the Author does not purchase such plates, film, copies or sheets, then the Publisher may dispose of them at any price and retain the proceeds of such sale. The Publisher is under no obligation to retain any such plates, film, copies or sheets. The Book shall not be deemed out of print as long as they are available from the Publisher in any edition, including electronic text editions.
15. Author's Rights
All rights not expressly granted by the Author to the Publisher are reserved to 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 or incidents in the Work without the written consent of the Publisher.
16. Author's Warranties
Author warrants and represents that:
(a) Author is the sole author and proprietor of the Work, and thus the Work is an original work of authorship;
(b) Author has full power and authority to make this Agreement and to grant the rights granted herein, 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 the writing of any other versions or adaptations of the Work and will not enter into such agreement, commitment, or other arrangement until after the termination of this Agreement;
(c) The Work has not been previously published (unless Publisher was notified and agreed to republish);
(d) The Work is not in the public domain;
(e) The Work does not infringe any statutory or common law copyright or any proprietary right of any third party;
(f) The 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 Work are not Work of fiction, all statements in the Work asserted as facts are true or based upon reasonable research for accuracy;
(g) The Work is not obscene and contains no matter the publication or sale whereof otherwise violates any federal or state statute or regulation thereunder, nor are they in any other manner unlawful, and nothing contained in the Work shall be injurious to the health of the user;
Each of the foregoing warranties and representations shall survive the termination of this Agreement. Each of the foregoing warranties and representations is true on the date of the execution of this Agreement and shall be true on the date of publication of the Work, and at all intervening times. The Publisher may rely on the truth of said warranties and representations in dealings with any third party in connection with the exercise or disposition of any rights in the Work. 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.
(a) 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 Work, based on the contents of the Work, except the Author shall have no indemnification obligation in connection with matters involving solely controversies arising out of or based on commercial transactions between the Publisher and third parties including, without limitation, its contractors and subcontractors, as well as its customers.
(b) The Publisher shall indemnify and hold the Author 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 Author by reason of the publication, sale, or distribution of, or disposition of rights in respect to the Work, based on the contents of the Work.
(c) Prompt notice of any given suit, proceeding, claim or demand brought or made against the Publisher or Author shall be given to the Author or Publisher respectively.
(d) Whenever any suit, claim or demand as to which Author's indemnity applies 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. Sums withheld hereunder shall be placed in an interest-bearing account and if the sums so withheld are paid to the Author the Author will be entitled to the interest earned on the portion of sums paid to the Author. If a claim does not result in commencement of a law suit within one year after it is first asserted, Publisher shall release the withheld funds less any costs Publisher may have incurred in connection with such claim, provided that Publisher may again commence withholding funds should a suit or proceeding be commenced after any release of withheld funds.
18. Revised Editions
The Author shall revise the first and subsequent editions of the Work at the request of the Publisher as reasonably necessary. 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 the Author, Publisher may cause such fact to be evidenced in the revised edition. Publisher shall have all rights in revised editions of the Work, which Publisher has in the original edition of the Work.
19. Third Party Copyright Infringement
If during the existence of this Agreement the copyright, or any other right in respect to the Work, are 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. 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 Author's own name and at Author's 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.
As used in this Agreement:
(a) “eBook” shall mean the publication of the Work in digital form, consisting of text, images, or both produced on, published through, and readable on computers or other electronic devices now known or hereafter invented.
(b) "Net Profits" shall mean any return received by Publisher on a business undertaking after all reasonable operating expenses for said undertaking have been met.
(c) "Remainder-in-place-sales" shall mean sales made in the United States in regular trade channels at regular trade discounts, for which a fifty percent (50%) credit to the bookseller is subsequently given by Publisher.
21.1. Entire Agreement: This Agreement constitutes the entire agreement and understanding of the Parties hereto and supersedes all prior agreements and understandings, oral or written, by and among the Parties with respect to the subject matter hereof. If any provision of this Agreement is found invalid, it shall be considered deleted and shall not invalidate the remaining provisions.
21.2. Amendment and Modification: The Parties hereto, by mutual consent of their respective duly authorized officers, may amend, modify and supplement this Agreement in such manner as may be agreed upon by them in writing.
21.3. Assignment: This Agreement and all of the provisions hereof shall be binding upon, and inure to the benefit of, the Parties hereto and their respective successors and permitted assigns.
21.4. Counterparts: This Agreement may be executed simultaneously in various counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
21.5. Headings: The headings of the paragraphs, sections and articles of this Agreement are inserted for convenience only and shall not constitute a part hereof.
21.6. Independent Counsel: Author hereby represents and warrants that Author has had the opportunity to read this Agreement and seek independent counsel to review and negotiate the same. In the event, Author fails to obtain independent counsel for purposes of this Agreement, Author will have voluntarily waived this right and any claim or defense based on a failure to engage counsel. Digital accepting of this agreement shall be interpreted to mean that Author consents to the provisions of this paragraph 21.6.
21.7. Waiver: Any condition to a party's obligation hereunder may be waived by such party. Any waiver of any term or condition of this Agreement shall not operate as a waiver of any other breach of such term or condition, or of any other term or condition, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision hereof.
21.8. Cooperation: The Parties hereto shall cooperate in all matters conducted in furtherance of this Agreement, including but not limited to Publisher’s efforts to develop and market the Work or to obtain insurance or any contractual agreements relating to the subject matter hereof. The Parties agree to execute such further documents and instruments as may be reasonably necessary to effectuate the terms and intentions of this Agreement.
21.9. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
21.10 Notices: All payments and notices hereunder shall be given to the Parties at the following addresses or to such other address as the Parties shall specify by notice as herein provided:
21.11. If to Publisher, send to:
2001 Hamilton St, Apt 619, Philadelphia PA 19130
21.12. If to Author, send to: address provided by Author.
21.13. Arbitration: Any and all disputes among the Parties to this Agreement arising out of or in connection with the negotiation, execution, interpretation, performance or non-performance of this Agreement and the transaction contemplated herein shall be solely and finally settled by arbitration, which shall be conducted in Philadelphia, Pennsylvania, by three (3) arbitrators, one selected by each of the Parties and the third selected by the arbitrators selected by the Parties. The arbitrators shall be lawyers familiar with the business transactions of the type contemplated in this Agreement and shall not have been employed or affiliated with any of the Parties hereto. The Parties hereby renounce all recourse to litigation and agree that the award of the arbitrators shall be final and subject to no judicial review. The arbitrators shall conduct the proceedings pursuant to the Rules of the American Arbitration Association, as now or hereafter amended (the "Rules"). The arbitrators shall decide the issues submitted to them in accordance with the provisions and commercial purposes of this Agreement, and what is just and equitable under the circumstances, provided that all substantive questions of law shall be determined under the laws of the Commonwealth of Pennsylvania.
The Parties agree to facilitate the arbitration by (i) making available to one another and to the arbitrators for examination, inspection and extraction all documents, books, records and personnel under their control if determined by the arbitrators to be relevant to the dispute; (ii) conducting arbitration hearings to the greatest extent possible on successive days; and (iii) observing strictly the time periods established by the Rules or by the arbitrator for submission of evidence or briefs. Judgment in the award of the arbitrator may be entered in any court having jurisdiction over the party against which enforcement of the award is being sought and the Parties hereby irrevocably consent to the jurisdiction of any such court for the purpose of enforcing any such award. The Arbitrators shall divide all costs (other than fees of counsel) incurred in conducting the arbitration in their final award in accordance with which they deem just and equitable under the circumstance. In all matters, the decision of two (2) arbitrators shall be the decision of the arbitrators.