Publish America Contract Warning
In my experience as an author I have worked with good people and bad people. My first publisher sent me a contract that I want you to be warned about if you are an author or writer looking to publish. The following is a duplicate of the contract they sent me to sign and like an idiot I signed it without realizing how well it protected them and exploited me.
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POST OFFICE BOX 151
FREDERICK, MARYLAND 21705-0151
This AGREEMENT is made as of the latest date indicated on the signature page below (“Effective Date”) by and between party of the first part, Kevin Davison , hereinafter called the “Author”, and PublishAmerica, LLLP, a book publishing company with its principal office located in the State of Maryland, party of the second part, hereinafter called the Publisher.
WHEREAS, the Author is Proprietor of a literary work (the “Work”) at present known as: Dark Athyx , which work has been submitted to the Publisher for publication;
WHEREAS, Publisher hereby agrees to produce and publish the Work on the terms and conditions specified hereinafter;
In consideration of the Recitals and the mutual exchange of promises contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Rights Granted: The Author grants and assigns to the Publisher during a period of seven years from the Effective Date the exclusive right to produce, publish, sell or export, or cause to be produced, published, sold or exported, the Work in book form in any language or languages, in the United States of America, its Dependencies, and in Canada; and the exclusive right to arrange for the publication of the Work in book form in any language or languages in all foreign countries, and/or to export copies to those territories and countries. The Author and the Publisher agree that this agreement is renewable upon the date of its expiration and will remain 2
enforceable during an additional and successive period of seven years, on the same terms and conditions as specified hereinafter, unless either party to this agreement shall decline such renewal in writing at least three months prior to the date of expiration as hereinbefore set forth.
2. Manner of Publication: Publisher agrees to produce the said literary Work in book form, in such format, type and style of paper, jacket and binding as will make the volume(s) attractive and substantial-looking.Subject to the conditions specified below, it is specifically understood and agreed, that the said volume(s) will contain all manuscript pages as
submitted by the Author, and will be printed on good quality paper with the bound size to be, approximately, 5½ x 8½ or 6 x 9 inches, or such other sizes selected by Publisher at its discretion. Publisher agrees to cause all copies of said literary Work to be printed and bound as the market demands and in sufficient quantities to supply purchasers of said literary Work therewith. Subject to these guidelines, Author agrees that all matters dealing with the design, production, sales and publication of said literary Work shall be at the discretion of the Publisher.
3(a) Royalties: The Publisher shall pay to the Author the following royalties for sales of any regular edition of the Work or translation thereof in the United States and elsewhere:
For the first 2000 copies sold by Publisher or on its behalf: 8 percent of the sales price received by Publisher;
For the next 4000 copies sold by Publisher or on its behalf, 25 percent of the sales price received by Publisher;
After 6,000 copies have been sold by Publisher or on its behalf, 50 percent of the sales price received by Publisher.
(b) Exclusions and Deductions: Publisher shall have no obligation to pay Author for any copies of the Work that may be used or distributed for review, publicity, advertising or promotional purposes, that may be lost in transit, destroyed, or damaged, that the Publisher may deliver to the Author without receiving payment in money, that the Publisher may deliver to the Author at a discount from the regular retail price, or that are returned by retailers or distributors. In the event that Publisher pays royalties on copies of books that are returned by retailers or distributors, Publisher has the right to deduct those amounts from future royalty payments. Any and all advance payments made by Publisher will be charged against royalties due to the Author. 3
(c) No payment shall be made to the Author for permission gratuitously given to others to publish extracts from said literary Work to benefit the sale thereof, but all compensation received by the Publisher for the publication of extraction therefrom, or for serial use after publication in book form, or for abridgments, or as a book club selection, shall be divided in the proportion of 50% to the Author and 50% to the Publisher. All compensation received by the Publisher in exchange for the dramatic or motion picture rights, or for the first serial rights prior to book publication, or for foreign, translation, radio, dramatic, cheap edition, television and/or all other rights in the said literary Work shall be similarly divided between the Author and the Publisher, as set forth in this paragraph 3(c). All gross monies and compensation received in payment for such sale, lease, assignment, license or other disposition of the rights in the Work shall be collected and disbursed by the Publisher, and all contracts for such sale, lease, assignment, license or other disposition shall provide that such monies and compensations are to be paid to the Publisher; and the Publisher is authorized to receive, collect and disburse same and to endorse and deposit all checks and/or drafts for such payment. All payments due from the Publisher to the Author hereunder shall be made within ninety (90) days from the receipt thereof by the Publisher, accompanied by statements of the amounts received and disbursed. Royalties shall be paid at the times indicated in paragraph 15.
4. Author Copies: Should the Author wish to purchase copies of the said literary Work directly from the Publisher, the Publisher agrees to supply the Author with such copies at a discount of 20% from the regular retail price per copy, if the Author orders up to 20 copies at a time, and at a discount of 30% from the regular retail price per copy, if the Author orders 21 copies or more at a time. The Author may dispose of these copies in any manner, and, if re-sold, may retain all monies derived therefrom.
5. Copyright and Right to Publicity: Any copyright registrations for the Work shall be taken out in the name of the Author in the United States of America, and in foreign countries as the Publisher may deem advisable. Publisher is authorized to credit Author with authorship of the Work and to use Author’s name, picture, and likeness for advertising purposes or purposes of trade in connection with the Work.
6. Joint Ownership: If the Work is authored or owned by more than one person, the word Author, as used herein, shall be deemed to include all authors or owners who are parties hereto, jointly and severally, and all sums payable to the Author shall be divided equally between 4 or among them and the Publisher shall render separate accounts and make separate payments to each of them unless herein otherwise provided.
7. Commencement: The Publisher agrees to commence production of the Work within 365 days from the Effective Date, provided Publisher is not hindered by causes beyond its own control, or by the Author. In the event Publisher fails to commence production within this deadline, Author may terminate this Agreement. In such instance, however, such payments as shall have been made to Author as advances shall constitute full payment to Author for all his rights, efforts and all materials supplied under this Agreement and no other damages, claims, actions or proceedings, either legal or equitable, founded on such breach, default or failure to publish by Publisher may be claimed, instituted or maintained by Author against Publisher.
8. Delivery and Advance: Author agrees to deliver to Publisher the final version of the manuscript (hereinafter referred to as the “Completed Manuscript”), as an electronic file, within 15 days of the Effective Date. Until the Completed Manuscript is submitted, Publisher Agrees that Author may make changes and/or corrections to the Work. After the Author’s submission of the Completed Manuscript, no changes and/or corrections shall be made except to correct Publisher errors. Upon receipt of the Completed Manuscript, Publisher shall pay the Author an advance dollar amount of $ 1 (one) , which will be charged against royalties due to the Author. Unless postponed by mutual agreement, failure to make delivery of the manuscript of the Work by the deadline specified herein shall be deemed just cause for Publisher, at its option, to terminate this Agreement by giving written notice. The foregoing does not exclude any other remedies at law or equity that the publisher may have. Payment of the advance or any part thereof or any other sums to Author hereunder, including any payment upon or following delivery of the Work, shall not be deemed to be evidence either that the Work is satisfactory to Publisher, that Author has fulfilled his obligations hereunder, or that Publisher has waived any of its rights hereunder.
9. Rejection of Manuscript: If, in the opinion of Publisher, the Completed Manuscript is unacceptable or unsatisfactory to Publisher, Publisher may reject it by sending written notice to Author at any time before the Work is placed on the market, in which event this agreement shall be deemed terminated (except as indicated herein), and there shall be no further obligation upon Publisher to publish the Work or to make any further payment. 5
10. Revisions of Manuscript: The Author agrees to revise the Work on request of the Publisher if the Publisher considers it in the best interests of the First and/or future Editions of the Work. In the alternative, the Publisher may elect to provide editorial services of its own that it considers in the best interest of the Work. It is specifically understood and agreed, however, that the Publisher shall make no major revisions, changes and/or alterations therein without first consulting the Author and receiving written permission to do so. The provision of this agreement shall apply to each revision of the Work by the Author or Publisher as though that revision were the Work being published for the first time under this agreement, except that the manuscript of the revised Work shall be delivered in final form by the Author to the Publisher within a reasonable time after request for revision. However, Author is not entitled to payment for any revisions made pursuant to this paragraph.
11. Page Proofs: Publisher shall furnish the Author with an electronic page proof of the Work which conforms to the Completed Manuscript as submitted by the Author, and which is formatted for publication by Publisher. The Author agrees to notify the Publisher of any nonconformity between the electronic page proof and the Completed Manuscript within forty-eight (48) hours after the electronic page proof is sent by Publisher to Author. All formatting decisions shall be made solely by the Publisher.
12. Editions: Whereas this agreement refers to a First Edition of the Work, as designated, the Publisher may produce as many editions thereof as Publisher shall deem advisable, at any time after it ceases to produce copies of the First Edition. For all such subsequent editions that the Publisher may produce, Publisher shall pay Author royalties as specified in paragraph number 3(a) of this agreement for every copy sold by it.
13. Promotion: Sales promotion, advertising and publicity of the Work shall be at the Publisher's election and discretion as to the extent, scope and character thereof and in all matters pertaining thereto. It is furthermore agreed upon that the Publisher may, at the Publisher's sole expense and discretion, create, maintain, and solely own a separate domain on the Internet, exclusively dedicated to promoting the said literary Work and/or the Author and/or the Publisher, and that the domain name and content may contain any combination of words and/or names, including the said literary Work's title and/or the Author's legal or pen name, that the Publisher may deem benefiting the sales promotion, advertising and publicity as hereabove set forth, at the Publisher's sole discretion. The Publisher may also distribute, at its discretion, for purposes of publicity and/or review, promotional information pertaining to said literary Work, to publications 6 throughout the United States and/or Canada, or elsewhere. Distribution of this promotional material shall be at the Publisher’s own cost and expense and to media outlets of the Publisher’s own choice. The Author agrees that excerpts of said literary Work may be included in this promotional information, and agrees, furthermore, that the Publisher may, at the Publisher’s election and discretion, cause to promote the said literary Work, as designated, in any electronic format, and that the Publisher shall have the exclusive right to distribute or cause to distribute, and to sell or cause to sell, at the Publisher’s election and discretion, copies of the said literary Work in any electronic format. The Publisher agrees to pay to the Author a return as specified in Provision number 3(a) of this agreement of the sales price of every copy in any electronic format that may be sold and for which the Publisher shall receive payment in money. The Author agrees to actively participate in promoting the sales of the said literary Work in his home town area and elsewhere, by making himself available to media interviews, book readings and/or signings, and other public sales promotion appearances.
14. Record Keeping: The Publisher agrees to keep and maintain true and accurate records relating to the distribution of copies of the Work, including reports of all sales and collections therefrom.
15. Statement of Account: The Publisher agrees to render and forward to the Author, in the months of February and August next succeeding the date of publication of the Work, and thereafter semi-annual statements of account for so long as copies of the Work subject to royalty are sold. With respect to copies sold, the statement shall indicate the price of each copy sold. The statement shall also indicate both the total royalties payable to Author on sales during the accounting period and a breakdown indicating the royalties attributable to specific prices and/or discount percentages, and the market(s) where any sales were made, e.g. U.S. or U.K. With each royalty statement, Publisher shall include payment for any amount due and owing as indicated in the statement; however, Author agrees that Publisher shall withhold royalty payments until the amount of royalties payable has reached an aggregate of forty-nine dollars. Any amounts withheld shall be retained by Publisher until the end of the royalty period during which publication of the book is discontinued. At that time, the amount retained shall be paid to Author.
16. Accounting: Author may, at his or her own expense, audit the books and records of Publisher relating to the sales of the Work at the place where Publisher maintains such books and records in order to verify statements rendered to Author. Any such audit shall be conducted only by a reputable public accountant during reasonable business hours in such manner as not to 7 interfere with Publisher’s normal business activities. An audit with respect to any statement shall not commence later than six (6) months from the date of dispatch to Author of such statement, nor shall audits be made more frequently than twice annually, nor shall the records supporting any statement be audited more than once. All statements rendered hereunder shall be binding upon Author and not subject to objection for any reason unless such objection is made in writing stating the basis thereof and delivered to Publisher within twelve (12) months from delivery of such statement, or if an audit is commenced prior thereto, within thirty (30) days from the completion of the relative audit.
17. Assignment and Subcontracting: The performance of the terms of this Agreement are personal to Author and may not be assigned or transferred in any way without the written consent of the Publisher; provided, however, that Author may assign or transfer (including to Author’s executors, administrators and heirs) any monies due, or to become due to Author hereunder. Author hereby agrees that Publisher may assign, sell, lease, license or otherwise dispose of its rights hereunder, including its right to publish the Work in hard cover, soft cover, reprint, and translation editions or as an extraction, serial, abridgement or book club selection; Publisher may also perform some or all of its obligations hereunder through contractors.
18. Subsidiary Rights: Author agrees that Publisher shall have the exclusive right for the duration of this Agreement to negotiate for the sale, lease, license or other disposition of the Work in the motion picture, dramatic, radio, television, and/or all other fields only if Author so consents in writing. In such event, Publisher may engage an agent, or agents, to negotiate, or assist in negotiating, for such sale, lease, license or other disposition. Approval of all terms, provisions and conditions of any and all contracts in connection with any such sale, assignment, lease, license or other disposition under this paragraph or paragraph number 17 shall be given by the Author upon the recommendation of the Publisher; and, for that purpose, the Author agrees to duly execute any and all contracts, assignments, instruments and approved papers submitted by the Publisher. Author agrees to notify Publisher promptly of the disposition of any subsidiary rights which the Author makes on his or her own behalf.
19. Copyright Infringement: In the event of the infringement, by others, of the copyright, or other rights, in the Work, the Publisher may, in its discretion, sue, or employ other remedies as it may deem expedient, and shall pay to the Author 50% of the net proceeds of any recovery. 8
20. Non-Competition: During the term of this agreement, Author shall not, without the written consent of Publisher, write, print, or publish or cause to be written, printed, or published, any part of the Work in any format, including as another edition of the Work, revised, corrected, enlarged, abridged, or otherwise.
21. Integrated Agreement: This agreement is entered into by both parties in good faith, with the mutual understanding that neither party has guaranteed, or is to guarantee, the sale of any specific number of copies of the Work, it being impossible to predict, before publication, what success any book may attain. The Author acknowledges that the Publisher has not made any prior pledges, promises, guarantees, inducements, of whatever nature, either in writing, by word of mouth, or in any form, that are not contained in the terms of this agreement, including representations regarding bookstore placement or quality of the manuscript.
22. Reversion of Rights: When in the judgment of the Publisher, the public demand for the Work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and may, at its discretion, destroy any or all materials used for the production of the Work without any liability in connection therewith to the Author. Publisher agrees to notify the Author of its decision to discontinue production upon discontinuation, and offer to transfer to the Author the materials in its possession, if any, before destroying any stock or materials, on the following terms F.O.B. point of shipment: the plates at their value for old metal, the engravings (to be used only in the work) at one-half (½) their original cost, the bound stock at one-half (½) the list price, and the sheet stock at cost of gathering, folding, sewing and preparing for shipment, all without royalties. Unless the Author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the plates, book stock, sheets and other property without further liability for royalties or otherwise. Notwithstanding the reversion of publishing rights to Author, Author’s remaining obligations to Publisher, including the warranties and indemnifications provided in paragraph 23 shall survive the discontinuation of the book pursuant to this paragraph.
23. Warranties and Indemnification: The Author covenants and represents that the Work contains no matter that, when published, will incite prejudice, amount to an invasion of privacy, be libelous, obscene, or otherwise unlawful, or which will infringe upon any proprietary interest at common law, trademark, trade secret, patent or copyright; that the Author is the sole proprietor of the Work and all parts thereof (or has obtained all necessary permissions), has reached the age of majority and has full power to make and perform this grant and agreement, and that the Work is free of any lien, claim, charge or debt of any kind, and that the Author and his legal successors and/or representatives will hold harmless and keep indemnified the Publisher 9
from all manner of claims, proceeding and expenses, including attorneys’ fees, which may be taken or incurred by Publisher on the ground that the covenants above are not true or that the Work is subject to any such lien, claim, charge or debt, or that it is such violation, or that it contains anything defamatory or illegal.
In defending any claim, demand, action or proceeding within the scope of paragraph 23, Publisher shall have the right to select counsel and the right to withhold amounts otherwise payable to Author under this or any other agreement and to apply such amounts (as required) in satisfaction of the foregoing indemnities. If monies are withheld under this clause, they shall be set aside in an interest bearing account, and any balance after payment of legal fees, expenses, settlement costs and/or judgments shall be paid to Author along with the interest on such amount. The foregoing warranties and indemnities shall be effective without regard to any representations, recommendations, reviews, or modifications to the manuscript made by Publisher prior to or after publication and shall survive the termination of this Agreement.
24. Disputes: All unresolved disputes, matters and controversies of any kind and nature arising from, relating to or involving this agreement (including questions about the existence, validity, construction, performance, nonperformance, operation, or breach of the agreement, fraud in the inducement of the agreement, mistakes relating to the formation of the agreement, and torts committed during the performance of the agreement), including claims against employees, agents, representatives, officers, directors and/or attorneys of Publisher, shall be submitted, if at all, to a court in the State of Maryland. This agreement shall be governed and construed in accordance with the laws of the State of Maryland. This clause shall survive the termination of this agreement.
25. Notice: Any written notice required under any of the provisions of this agreement shall be deemed to have been properly served by delivery in person, by mailing same to the parties hereto at their addresses as of the date set forth above, except as the addresses may be changed by notice in writing, or by sending by electronic mail to their e-mail addresses, provided, however, that notices of termination shall be sent by registered mail.
26. Waiver: A waiver of any breach of this agreement or of any of the terms or conditions by either party hereto, shall not be deemed a waiver of any repetition of such breach or in any way affect any other terms or conditions hereof; no waiver shall be valid or binding unless it shall be in writing, and signed by the parties. 10
27. Severability: The invalidity, illegality, or unenforceability of any provision hereof shall not in any way affect, impair, invalidate or render unenforceable this Agreement or any other provision hereof.
28. Contract Documents: The Parties acknowledge that they are free to sign this Agreement electronically, that Publisher is authorized to send this Agreement to Author in two separate files, including a pdf file containing the body of the Agreement and Publisher’s signature and a Word/WordPerfect file containing the Author’s signature line, and that this Agreement shall be comprised of both files.
IN WITNESS WHEREOF, the parties hereto set their hands and seal the day first above written.
AUTHOR’S SIGNATURE SENT BY SEPARATE FILE:
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Each article clearly protects them from any lawsuits they might face from angry authors they burn. I do not recommend anyone sign with this publisher for fear of what they do and how they make money while you as authors don’t.
Article by Kevin C Davison
“I write to entertain, and for a cause.”