Wings ePress, Inc.
Newcastle, OK 73065-0555
THIS AUTHOR’S AGREEMENT
(“Agreement”) is made this (“Effective
Date”) by and between Wings e-Press, Inc., a
Delaware corporation (“Publisher”) and (“Author”).
WHEREAS, Publisher is in the business of publishing, promoting
and distributing written material, primarily through its website; and
WHEREAS, Author has prepared a
work entitled (“Work”) and desires
for Publisher to publish, promote and distribute the Work.
NOW THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1.
Grant of License. Author
hereby grants to Publisher and Publisher hereby accepts from Author an
exclusive, paid-up, worldwide license to use, reproduce, distribute, publish,
sell, display, edit, adapt, translate, modify, market, sublicense and otherwise
commercialize the Work and any derivations thereof in electronic format, Print
on Demand (“POD”), or other similar format.
“Electronic format” includes,
download, or other similar electronic medium (in any machine or human readable
format, including without limitation html, xml, .rtf or .pdf).
All rights in the Work not herein specifically granted to Publisher are
reserved by Author.
2.
Term.
Unless earlier terminated, the term of this Agreement will be two (2) years from
the Date of publication and will automatically renew for successive terms of one
(1) year each unless notice of termination is given by Author not less than
sixty (60) days prior to the end of the then current term.
3.
Termination.
(i)
This Agreement may be terminated effective immediately by the mutual agreement
of the parties.
(ii)
In the event of a material breach of this Agreement, the non- breaching party
may terminate this Agreement by giving the breaching party written notice of its
election to terminate as of a stated date, not less than thirty (30) days from
such stated termination date. Such
notice will state the nature of the breach claimed by the non-breaching party.
The breaching party may cure the default stated in such notice within
thirty (30) days of receipt, or, if such default will take longer than thirty
(30) days to cure and the breaching party is diligently pursuing such cure, this
Agreement will continue as if such notice had not been given.
(iii)
In the event Publisher becomes insolvent or ceases business, or files a
voluntary petition or an answer admitting the jurisdiction of the court and the
material allegations of, or consent to, an involuntary petition pursuant to or
purporting to be pursuant to any reorganization or insolvency law of any
jurisdiction, or makes an assignment for the benefit of creditors, or applies
for or consents to the appointment of a receiver or trustee of a substantial
part of its property, at the option of Author this Agreement will terminate
effective ten (10) days following Publisher’s receipt of Author’s written notice
of termination.
(iv)
This Agreement may be terminated by Publisher according to the provisions of
Section 10 and 11 herein.
(v)
Subject to Section 12 herein, either party may terminate this Agreement without
cause upon forty-five (45) days prior written notice.
4.
Effect of Termination.
Upon a termination of this Agreement, (i) all accrued but unpaid Royalty (as
hereinafter defined) will be due and payable at the end of the quarter in which
termination occurs, (ii) all orders for the Work made prior to the date of
termination may be fulfilled, (iii) Publisher or a Publisher approved third
party may market and sell any inventory of the Work (in any format) that remains
unsold as of the date of termination with Royalty continuing to accrue to Author
as provided in this Agreement, unless Author purchases the remaining inventory
in accordance with Section 16 herein, and (iv) unless expressly provided
otherwise herein, all rights granted to Publisher in this Agreement shall
immediately terminate.
5.
Royalty.
(i)
Unless specifically adjusted in this Agreement, Publisher shall pay Author a
royalty (“Royalty”) of thirty percent
(30%) of the Work’s retail download price (“Price,”
calculated in U.S. Dollars) on all completed sales of the Work in any and all
formats including trade paperback POD, (excluding any amounts refunded to a
purchaser or any “charged back” amounts related to a dispute between a purchaser
and his/her credit card company), so long as they are sold by Publisher or
through Publisher-approved third parties; provided, however, the Royalty as
related to sales of the Work through outlet(s) requiring distribution discounts
shall be thirty percent (30%) of the download amount remaining following payment
to such third party outlet(s).
(ii)
Should Author elect to have the Work published in POD format for a
reasonable setup fee of $90.00,
such election is required to publish the Work in POD format and shall be made on
the signature page of this Agreement.
(iii)
Unless required otherwise by a Publisher-approved third party, Publisher shall
set the Price based on the length of the Work, comparable works currently in the
public domain, prior works by Author and any other reasonable criteria.
Publisher reserves the right to increase or decrease the Price at any
time in an effort to stimulate sales; provided, however, Publisher agrees not to
reduce the Price for one (1) year following the initial release and pricing of
the Work.
(iv)
Royalty shall be accumulated and paid no later than the 30th of the
month following the end of each calendar quarter. Publisher will provide a
written report of sales accompanying its payment and provide any other
information relevant to sale of the Work, as reasonably requested by Author.
(v)
It is Author’s sole responsibility to communicate to Publisher any change in
taxpayer identification number, social security number, postal mailing
address(es), telephone number(s), electronic mail address(es), bank routing
number (if Royalty is paid by electronic funds transfer), or other information
necessary to the proper payment of Royalty.
If Author fails to advise Publisher of any such changes that directly
prevents timely payment of Royalty, Publisher is authorized to hold, without
penalty, payment of Royalty until current information is received.
6.
Representations and Warranties
of Author.
Unless otherwise communicated to Publisher, Author hereby represents and
warrants that
(i)
he/she is the author and sole owner of the Work or has been assigned, granted or
licensed unassailable, unlimited and exclusive rights to the Work and all
components thereof (including any characters and quotations therein),
(ii)
neither the Work nor entering into this Agreement will impair or violate any
third party’s rights, including without limitation rights of privacy, rights of
publicity, libel or infringement of copyright or any other intellectual property
right,
(vi)
he/she has full power to execute this Agreement and grant the rights as
described herein,
(vii)
the Work has never been published and is not currently in the public domain,
(see Clause 14) and
(ii)
the Work contains no obscene material.
7.
Certain Covenants of Publisher.
As is reasonable, Publisher hereby covenants and agrees to
(i)
unless the format is not amenable to encryption, publish the Work in secure and
encrypted electronic formats that protect Author’s copyright to the extent
reasonable using current encryption methods,
(ii)
refrain from publishing the Work as part of a compilation,
(iii)
publish and commence distribution of the Work within twelve (12) months of the
final edit of the Work,
design the electronic download or other distribution of the
Work in such a way that a purchaser may take full advantage of any technological
enhancements (such as internal hyperlinks),
(iv)
ensure that notice of copyright ownership by Author shall appear on the Work in
accordance with Title 17 of the U.S. Code, and
(vi)
promote the Work on its website and seek promotion of the Work by third
parties as Publisher deems necessary.
8.
Certain Rights.
(i)
Publisher shall have the non-exclusive right to use and display Author’s name or
pseudonym, likeness and biographical material for the sole purpose of
advertising, publishing and promoting the Work, and Author hereby expressly
waives any claims now or hereafter, against Publisher, its owners and
affiliates, editors, shareholders, officers, directors, partners, associates,
agents and representatives for defamation, invasion of privacy and infringement
of publicity rights related directly or indirectly to Publisher’s use of
Author’s name or pseudonym, likeness or biographical material.
Publisher further shall have the non-exclusive right to use and display
characters created in the Work, as well as series titles and trademarks
developed by Author for the sole purpose of advertising, publishing and
promoting the Work.
(ii)
Without the express permission of Publisher, Author shall not have rights to, or
in, any trademark, service mark, trade name, logo or other similar identifying
mark used by Publisher.
9.
Manuscript Submissions. Unless Publisher already has possession of the Work,
within Ninety (90) days of the Effective Date a final manuscript submission shall
be provided by Author in at least Word® 6.0, WordPerfect® 7.0, or Rich Text
format. If Publisher provides Author
a style sheet, the provisions of this Section 9 shall be replaced (where
inconsistent) by the formatting instructions found on the style sheet.
Publisher is not liable for lost manuscripts and is under no obligation
to keep a back-up copy.
10.
Manuscript Editing; Approval.
Publisher or its designee will edit the Work for publication; provided,
however, Publisher or its designee will make no material substantive changes to
the Work without Author’s approval.
Prior to publication, Publisher will send a galley-style copy of the edited and
copy-edited final manuscript to Author.
Upon receipt of the edited and copy-edited final manuscript Galleys,
Author shall have Seven (
7 ) days
to proof the manuscript Galleys and send a list of corrections to
Publisher; or, within the prescribed time frame Author may send Publisher a
letter of acceptance in lieu of the list of corrections.
Publisher reserves the right of final approval on the revised manuscript
and may accept or reject the Work at its reasonable discretion.
Upon a rejection of the Work, this Agreement shall immediately terminate.
11.
Removal.
Publisher may cease publication of the Work at any time if Publisher
reasonably determines that (i) sales of the Work are not meeting performance
goals or (ii) publication of the Work is detrimental to any aspect of
Publisher’s business. Upon such
decision by Publisher, Publisher shall give notice to Author and this Agreement
shall immediately terminate.
12.
Author’s Right.
Author may exercise his/her right to terminate this Agreement under
Section 3(v) herein only until publication of the Work by Publisher; at which
time Author’s right to terminate under Section 3(v) shall expire.
In the event Author exercises such termination right following
commencement of the editing process by Publisher but prior to publication of the
Work, Author shall owe the following amounts:
(i)
$75.00 to the Publisher-designated editor;
(ii)
$50.00 to the Publisher-designated copy editor; and
(iii)
as applicable, $75.00 to the artist, if artist agrees to the sale of the cover,
and all future rights to the cover will belong to the author.
Author shall pay the above amounts (as applicable) by personal
checks made payable to the specific individual.
As necessary, Publisher will provide Author with correct names as well as
mailing instructions for the payment of fees under this Section 12.
13.
Copyright.
Obtaining registered copyright protection on the Work (under United
States and International Law) is the sole responsibility of Author and should be
completed at or within a reasonable time after the Effective Date.
Promptly after receipt of confirmation of such copyright registration(s),
a photocopy of the registration(s) shall be made available to Publisher.
Copyright ownership of the Work by Author in no way modifies the
exclusive rights granted to Publisher in this Agreement.
14.
Previous Publication.
If the Work has been previously published in any form, Author shall, as
applicable, provide Publisher written documentation showing a reversion to
Author of complete proprietary rights to the Work.
15.
Duplication.
At no cost, Author may duplicate exact text copies of the Work in digital
or print formats for the purpose of obtaining book reviews or entering
competitions; provided, however, if the Work is available in POD format or
traditional print run format, Author may not make print format copies for
competitions, but may purchase print copies for this purpose at the Author’s
Discount (as hereinafter described).
16.
Author’s Discount; Free Copies.
Author may purchase copies of the Work for marketing purposes at a thirty
percent (30%) discount off the Download Price. As available, Author may purchase
copies of the Work in POD format at a $1.80 discount off the Cover Price. The
Author will not receive Royalties on any discounted sales made to Author.
Author will further be provided five (5) free Download copies of the Work
(PDF and/or HTML) to be used solely for promotional purposes. Author Copies,
consisting of two (2) POD copies of the Work shall be sent to author after
publication of the Work. If Author does not elect to have the Work published in
POD format, he/she will be provided two additional free Download versions of the
Work in lieu of the complimentary POD.
17.
Indemnification. Author
shall defend (unless such defense is undertaken by Publisher), indemnify and
hold Publisher, its owners and affiliates, editors, shareholders, officers,
directors, partners, associates, agents and representatives harmless against any
claims, debts, demands, suits, actions, liens, proceedings and/or prosecutions
(collectively, “Claim”), including
reasonable court costs and attorneys’ fees, arising directly or indirectly from
the Work or this Agreement. Each
party will promptly notify the other of any Claim and will cooperate fully in
any subsequent defense. Publisher
may withhold from sums otherwise due Author under this Agreement any amounts
reasonably equivalent to the amount Author would owe Publisher under this
Section 17. If a Claim is brought against Publisher, its owners and affiliates,
editors, shareholders, officers, directors, partners, associates, agents and
representatives, based on facts which, if true, would trigger the
indemnification obligations in this Section 17, Publisher may defend the same
through counsel it chooses and may settle the same in its sole discretion.
This Section 17 shall survive the termination or expiration of this
Agreement and shall be binding upon all parties who constitute “Author”
hereunder, both jointly and severally.
18.
ISBN (International Standard Book Number).
Publisher shall have the sole responsibility to provide and assign an
ISBN as formal identification of the Work. A separate ISBN shall be assigned for
each format of the Work, in accordance with International Publishing Practices.
19.
Subsequent Works.
Author hereby grants Publisher a right of first refusal for the
publication of any revisions, abridgements, condensations, prequels, sequels or
further installment (if the Work is part of a series) of the Work.
Upon completion of the subsequent work, Author shall notify Publisher and
provide Publisher with a finished draft.
If Publisher does not accept for publication the subsequent work within
ninety (90) days of submission by Author, such right of first refusal will
expire and Author will be free to market rights to the subsequent work without
encumbrance.
20.
Cover Art and Back Blurb.
Author shall provide to Publisher the back blurb text for the Work, if
any. Author may provide suggestions as to the cover art to be included in the
Work, if any. If Author wishes to
provide his/her own cover art or engage a third party for this purpose, such
cover art must meet the minimum formatting requirements necessary for website
publication of the Work. If Author
engages a third party to produce the cover art, Author must provide
documentation reasonably acceptable to Publisher indicating that Author has
permission from the owner or licensee of the cover art to reproduce such cover
art. Publisher agrees to give
creative credit in the Work to the cover artist.
Any and all license payments and other fees related to the creation or
use of cover art created by a third party are the sole obligation of Author.
Publisher has final approval on any cover art.
In the event Author provides (and Publisher approves) cover art for the
Work, Author shall receive a three percent (3%) royalty on sales of the Work in
addition to, and pursuant to the terms of Section 5 of this Agreement.
21.
Title.
Author may suggest titles for the Work, however, Publisher has final
approval of release title of the Work.
In the event Publisher reasonably determines that the title of the Work
should be changed, Author will be given notice and an opportunity to suggest a
list of alternative titles.
22.
Infringement.
Publisher is not obligated to initiate legal proceedings should a claim
arise regarding a third party’s infringement or alleged infringement of Author's
or Publisher's rights. If such a
claim arises, each of Author and Publisher may bring an action for infringement.
23.
Assignment.
Publisher may assign its rights and obligations under this Agreement.
Author may not assign or attempt to assign its rights and obligations
under this Agreement without the prior written consent of Publisher.
24.
Accounting.
Publisher shall keep records of all sales, cost of sales, refunds and
fees related to the Work for reasonable inspection by Author.
25.
Miscellaneous.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which shall together constitute one
agreement. Should any part of this
Agreement be invalid or unenforceable, such invalidity or unenforceability shall
not affect the validity or enforceability of the remaining portions. This
Agreement shall be interpreted under, subject to and governed by the laws of the
State of Tennessee, without giving effect to provisions thereof regarding
conflicts of laws, and all questions concerning its validity, construction, and
administration shall be determined in accordance thereby.
This Agreement contains the entire understanding of the parties hereto
with respect to the matters covered hereby and may be amended only by an
agreement in writing executed by both parties.
All captions and headings in this Agreement are for convenience only and
carry no inherent substantive meaning.
The failure of either party to enforce any provision of this Agreement
shall not be construed as a waiver or limitation of that party’s right to
subsequently enforce and compel strict compliance with every provision of this
Agreement.
IN WITNESS WHEREOF, the
parties hereby execute this Agreement as of the Effective Date.
Wings
e-Press, Inc.
“Publisher”
By:
________________________________________________________________ Date
_________________
Its:
President and Executive Editor________________________________________
Address:
403 Wallace Ct.
Richmond KY, 40475
Phone:
859-626-9630
Email:
mkapp@bellsouth.net
“Author”
Name:
___________________________ Date ______
Mailing
Address: _______________________________________
City,
State, Zip Code___________________________________
Phone:
____________________________________________________
Email:
____________________
Social
Security Number: ______________________________________________
Pseudonym
(if applicable): ________________________________________
Please
initial in the appropriate space below:
I elect to
have my Work published in POD format and agree to pay the reasonable set up fee
outlined in Clause 5 ii:
_____________
I do not
elect to have my Work published in POD format:
_____________