Creator and Publisher both wish to have Creator’s material published in The Search For New Frontiers, Inc.’s Calliope, subject to the following terms and conditions. Publisher seeks one time international publication rights to Creator’s material.
RIGHTS AND OWNERSHIP
1. Creator’s Rights
Creator shall retain full ownership of, and all copyrights and trademarks to, Creator’s material, and Publisher shall not prevent Creator from obtaining legal recognition or protection of such copyrights and trademarks.
2. Publisher’s Rights
Publisher shall retain ownership of any material created to enhance Creator’s material , including but not limited to artwork, sound, music, or text, and Creator may not publish such material elsewhere without Publisher’s written consent.
3. Non-Infringement of Rights
Creator states that, to the best of Creator’s knowledge, none of Creator’s material submitted to Calliope infringes any copyright or trademark of others.
4. Publisher Disclaimer
Publisher makes no warranties that Creator’s material published in Calliope infringes any trademark or copyright of others. Creator will be solely responsible for the defense of and claims and or damages as a result of any trademark or copyright infringement by Creator’s material.
5. Creator Disclaimer
Creator will not be held responsible for the defense of and claims and or damages as a result of any trademark or copyright infringement made by any other party.
6. Merchandise
With the exception of packaging and marketing for “the specific volume of Calliope in which Creator’s material appears” (“the Volume”), publisher shall not feature Creator’s property on any merchandise, including but not limited to t-shirts, figurines, and spin off CDs, without the written permission of Creator.
PAYMENTS
1. Royalties
During the term of this agreement, and beginning after the first publication the Volume, Publisher will pay Creator a royalty on sales of each product based upon the “gross sales revenue” to consumers collected by Publisher for each product of _____. “Gross sales revenues” to mean gross sales less normal trade allowance, cash discounts and returns. Royalties shall accrue and be paid, on a quarterly basis. Payment is to be made no later than 30 days after the end of each quarter. Upon written request of Creator, Publisher will provide sales numbers for a specified quarter.
2. Payment Past Due
An interest charge of 1.5% per quarter shall be applied to late payments, and shall be due at the time such late payment is made.
3. Free Copy
Publisher shall give Creator one free copy of the Volume. In addition, Creator may purchase up to three copies of the Volume at cost, the price of which may be subtracted from ensuing royalties. Creator may not resell copies of the Volume.
Miscellaneous
1. Term
The term of this Agreement shall last until such time as Publisher ceases to sell copies of the Volume. Publisher may continue to produce new copies of the Volume so long as there is market demand for them.
2. Access to Books
Publisher agrees to keep accurate books and records showing sales of Calliope. Publisher will permit inspection of such records by Creator or its authorized representatives during Publisher’s regular business hours upon reasonable written notice.
3. Assignments
This agreement shall not be assigned or otherwise transferred by either party without the prior written consent of the other, which consent shall not be unreasonably withheld.
4. Termination
Either party may terminate this agreement for cause. “Cause” shall be deemed to exist anytime an event of default of the other party has occurred, unless the party in defaults acts to cure within 30 days and effectively does cure, such default. Creator may terminate this agreement at any time following a pattern of late or missed royalty payments by Publisher. Such a pattern is deemed to exist following within 90 days, two late or missed payments in any one year period. In the event of any termination of this agreement the right of Publisher to reproduce and distribute Creator’s material for profit or otherwise shall terminate; except that Creator shall grant Publisher an extension to sell its existing inventory for a period of time reasonable in the circumstances.
LEGAL COVENANTS
1. Confidentiality
Each party acknowledges that all information which has or will come into possession of each in connection with this agreement or its performance, consists of confidential and proprietary information, whose disclosure to, or use by third parties will be damaging. Both parties agree to hold such material and information in the strictest confidence, and not to make use of it for any reason other than the performance of this agreement.
2. Arbitration
Any controversy or claim arising out of this agreement shall be settled by arbitration in Delaware in accordance with the commercial arbitration rules of the American Arbitration Association then in effect, and judgment upon the award rendered by a 3 man arbitration panel may be entered in any court of competent jurisdiction.
3. Notice
Any notice required by this agreement shall be directed to the individuals whose signatures appear in this agreement, at their respective addresses stated herein, or as otherwise provided in writing by either party to the other.
4. Applicable Law
The Agreement shall be governed by and shall be construed in accordance with the laws of the state of Delaware.
5. Force Majeure
Neither party shall be liable for delays in performance or non-performance under this agreement caused by such events as fires, power failures, strikes, riots, war, governmental regulation, failure of third parties, acts of God, or, without limiting the generality of the foregoing, causes beyond that party’s control.
6. Headings
The headings of this agreement are for reference purposes only and shall not be deemed a part of this agreement.
7. Amendments: Waiver
No amendment or waiver of any provision of this agreement shall be effective unless the same shall be in writing and signed by the authorized representative of each party. Any waiver or consent given by the parties shall be effective only in the specific instance and for the specific purposes for which it is given.
8. Entire Agreement
Each party acknowledges that it has read this agreement, understands it, and agrees to be bound by its terms: all prior agreements, representations, statements, negotiations and untertakings are superseded by it.
The parties hereto have caused this agreement to be executed by their duly authorized representatives to be effective as of the latest date written below.
Publisher may wish to distribute “demonstration versions” (“Demos”) of Creator’s material to encourage sales of the Volume. Demos are freely distributed for no profit through online services, CD-ROM publications, and other methods. Creator will not be paid for this use of Creator’s material. Creator may elect not to allow the use of Creator’s material in any Demos by not signing below.
The parties hereto agree that Demos may only be distributed by permission of Creator, indicated by Creator’s signature below. Failure of Creator to sign below indicates that Publisher may not distribute Demos of Creator’s material. Creator may withdraw permission to distribute further Demos at any time by providing notice in writing to Publisher.
