MOUNTAIN ASH PRESS
MOUNTAIN ASH PRESS PUBLISHING AGREEMENT (to be negotiated with the winner)
THIS AGREEMENT (“Agreement”), effective as of Date (the “Effective Date”), is entered into between Author (hereinafter referred to as “Author”) and Mountain Ash Press (hereinafter referred to as “Author”), whose address is 5522 Three Notch’d Rd. Crozet, VA 22932 USA and an email address of info@mountainash.press for notice purposes. In consideration of the mutual promises and covenants set forth herein, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
BASIC PROVISIONS
A. The Work(s):
B. Territory: Worldwide
C. Languages: English
D. Delivery Date: Five (5) days from the Effective Date
E. Delivery Format: digital file in Word format.
F. Distribution Channels: All online, audio, and print retailers including but not limited to Amazon.com, Draft2Digital.com, IngramSpark, and Findaway Voices..
G. Publication/Distribution Format: All digital text (e.g. “eBook”), print (e.g. “Print”) and digital audio (e.g. “Audiobook”) formats now known or hereafter developed (collectively, “book editions”), as set forth in the Terms and Conditions.
H. Term: Subject to the additional non-exclusive term set forth in Section I below, Two (2) years from the Effective Date hereof, unless earlier terminated in accordance with the Terms & Conditions (the “Term”).
H.. Exclusivity: The rights granted hereunder with regard to the book editions and the licensing and distribution thereof shall be exclusive for the Term and non-exclusive thereafter for the full term of copyright.
- Author’s Share of Licensed Rights Income: For proceeds from the licensing of rights held by MAP to Third Parties and all reading/listening activity that occurs on such Third Party Channels:
| Pay-out Type | Rights Licensed | Percentage* payable to Author |
| Net Receipts | Audiobook (including, Omnibus and Anthology, in whole or in part: in complete, condensed, adapted, or abridged versions) | 80% |
| Net Receipts | Digital Book | 80% |
| Net Receipts | Print-on-Demand | 80% |
*Author acknowledges and agrees that the payment terms of any third-party license may be a flat Fee or Royalty based, as negotiated by MAP and such Third Party. Notwithstanding the foregoing, Author shall receive the percentage of Net Receipts from such license as indicated in the chart above.
i. “Fee” means the amount paid to Author, which may be a single lump-sum payment or paid in installments. ii. “Net Receipts” means cash received from a Third Party Channel less returns, exchanges, credits issued, and third party out-of-pocket distributor’s fees and commissions.
iii. “Royalty” means the percentage of MAP’s Net Receipts payable to Author from MAP’s or its licensee’s distribution of Digital Editions on a Third Party Channel.
L. Royalty Accounting Period: Royalties if any, will be paid in United States dollars by ACH or local transfer with net thirty (30) terms after the provision of any royalty report, if applicable. Royalty reports are calculated on a quarterly basis, with payments also due quarterly.
M. No Royalty: No royalty will be earned on copies of the Digital Editions distributed without charge for review, publicity, sampling or the like.
N. Copyright Notice: MAP shall include the following notice on all Digital Editions, unless otherwise specified by Author: ©2024 Author. Published by Mountain Ash Press, Inc. All Rights Reserved.
This Agreement includes the Basic Provisions and the Terms and Conditions and the exhibits, forms, schedules and riders, if any, annexed hereto and made a part hereof. All capitalized terms in the Terms and Conditions shall have the respective definitions as set forth in the Basic Provisions herein. In the event of a conflict between the terms of the Basic Provisions and the terms of the Terms and Conditions, the Basic Provisions shall take precedence.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above.
Author
By:
Name: Author
MAP, Inc.
Name: Caroline Topperman or Andrea Cumbo
Title: Owner, Mountain Ash Press
TERMS AND CONDITIONS
1. Grant of Rights: (a) Subject to the terms and conditions of this Agreement, Author hereby grants to MAP a limited right and license, for the Term, throughout the Territory and in the Languages, as specified in the Basic Provisions, to manufacture, publish, market, display, perform, provide paid access to, sell, transmit, and distribute the Digital Editions on MAP Channels in whole or in part including omnibus, anthology and other selection reprint, in complete, condensed, adapted, or abridged versions. The parties acknowledge and agree that all Audiobook rights granted to MAP herein may be sub-licensed by MAP to third parties in MAP’s sole discretion, including but not limited to the rights to produce, reproduce, market, distribute, translate, and make the Audiobook publicly available, in whole or in part including omnibus, anthology and other selection reprint, in complete, condensed, adapted, or abridged versions, in any and all languages on Third Party Channels, including the right to distribute and display a sample or preview of the Audiobook to its and their end users; and to use Author’s name and approved image, likeness, and biography, as provided by Author, in association with MAP and its licensees activities under this agreement, including for advertising, promotion, and other exploitation of the Audiobook. All rights to the Work not expressly granted herein are reserved by Author.
(b) Subject to Author’s prior written approval (email acceptable), not to be unreasonably withheld, denied, or delayed, MAP shall have the non-exclusive right to produce, reproduce, market, distribute and make publicly available a print edition in any and all print formats, including but not limited to pocket-books, mass market, large print, hardcover and/or paperback, of the Works in the Territory and Languages as specified in the Basic Provisions, and the right to sub-license such rights to third parties.
2. Deliverables/Metadata. (a) Author shall deliver to MAP (i) one (1) complete copy of the Work; (b) MAP shall, within sixty (60) days from receipt of the complete Work and all Metadata, either (i) accept the Work, or (ii) return the manuscript with detailed written editorial feedback for correction or revision. (c) Author shall, at Author’s expense, obtain all permissions and other clearances that MAP deems reasonably necessary for the inclusion of any textual or other material contained in the Work by Author in the Digital, Print, and Audio Editions, and deliver copies of all such permissions, acknowledgements, and copyright notices in an agreed format, on or before the Delivery Date.
(d) In the event Author fails to provide the Work and Metadata by the Delivery Date, or the Work is unacceptable to MAP in its sole discretion, then MAP will have no obligation to publish the Digital, Print, or Audio Editions and shall have the right to reject the Work and terminate this Agreement by written notice to Author. Upon any such termination all money previously paid to Author, if any, shall promptly be repaid to MAP, at which time all rights to the Work shall revert to Author, and there shall be no further claims, liabilities, or obligations between the parties concerning this Agreement.
3. Payments to Author: In consideration of the rights granted by Author to MAP, MAP shall make payments to Author as set out in the Basic Provisions on net 30 terms.
4. Accounting; Reporting; and Taxes: (a) Within sixty (60) days of 30 June and 31 December of each year, MAP shall provide Author with a royalty report covering the preceding royalty period together with the calculation of any owed Royalties from distribution on and licenses to Third Party Channels, if any. Notwithstanding the foregoing, whenever earnings from distribution on and licenses to Third Party Channels in any six-month period fall below US$25.00, no payments shall be made until the next settlement date after earnings have aggregated that amount, but MAP shall nevertheless render an interim statement of the amount due to Author. MAP shall keep full and proper records and accounts with respect to the Digital, Print, and Audio Editions during the Term and for a period of two (2) years thereafter. Upon prior written notice of not less than thirty (30) days to MAP, Author or its duly authorized representative shall have the right during reasonable business hours, but in no event more than once per year of the Term and for a period of one (1) year thereafter to examine and verify MAP’s books of accounts and records solely with respect to the Digital Editions, and to make copies and extracts thereof subject to all confidentiality restrictions. The expenses of any such audit shall be borne by Author unless errors in accounting in MAP’s favor amounting to 5% or more of the sums paid to Author in a six (6) month period are found, in which event such expenses shall be borne by MAP up to the amount of such discrepancy, in addition to promptly paying any amounts due. Unless Author provides a detailed objection within one (1) year following the applicable reporting period, Author shall be deemed to consent to all reports, and reports shall not be subject to objection for any reason.
(b) MAP shall make all payments due hereunder free and clear of any and all taxes, duties, imports or similar charges. All amounts payable to Author shall be subject to all laws, regulations and tax treaties now or hereafter in existence, which require the reporting and/or deduction of withholding taxes from payments made to Author under this Agreement. In the event that a reduced withholding rate is appropriate under the applicable income tax treaty,
MAP shall report or deduct such withholding taxes from the payment hereunder to Author at such reduced rate (including, but not limited to, a zero rate of tax) pursuant to the applicable income tax treaty. MAP shall have the right to make such reporting and/or deductions in accordance with such laws, regulations and tax treaties, and the payment and/or reporting thereof to the governmental agency concerned in accordance with such laws, regulations and tax treaties, shall constitute payment hereunder to Author.
5. Production: (a) MAP shall, with due diligence, actively pursue the distribution of the Digital Editions in the Territory not later than eighteen (18) months after the Delivery Date.
(b) All detail as to the manner of production including but not limited to cover design, release, promotion, distribution, license, and sale and/or subscription access price of the Digital Editions shall be at the sole discretion of MAP. MAP shall be responsible for all Production Costs for creating the Digital Editions, including but not limited to editing, visual design, audio engineering, sound design, and, if applicable, narration by a professional voiceover talent of MAP’s choice.
(c) MAP shall employ commercially reasonable technological protection measures to prevent: (i) unauthorized copying or distribution of the Digital Editions; and (ii) interruptions of service for the distribution of the Digital Editions; provided, however, that any unauthorized copying or distribution or interruption of service shall not be deemed a breach of this agreement, and Author’s sole remedy is to require MAP to make commercially reasonable efforts to prevent or correct such unauthorized copying or distribution or interruption of service.
6. Ownership: (a) As between Author and MAP, all right, title and interest in and to the Work shall be and remain the sole and complete property of Author. MAP covenants and agrees that it will not make any unauthorized use of the Work, or any use infringing upon Author’s reserved rights.
(b) Any copyright or other proprietary rights owned by MAP (“MAP IP”) and used by it in connection with the Digital, Print and Audio Editions, shall continue to be owned by MAP and shall not become the property of Author.
7. Copyright Notice, Infringements: (a) MAP shall affix the applicable Copyright Notice set forth in the Basic Provisions, together with any other legends, markings and notices required by any law or regulation in the Territory to all Digital Editions and to all promotional, advertising, publicity and display materials used in connection therewith. Notwithstanding the foregoing, the exclusive right, title, and interest in the copyright in the performance embodied in the sound recording of any Audiobook produced hereunder shall be the property of MAP. MAP shall take all steps necessary to protect the copyright, its renewals and all rights pertaining to its Audiobooks, according to the copyright laws of the United States.
(b) If MAP learns of any actual, threatened or suspected infringement of the Author’s intellectual property rights by a third party, or it is alleged that the rights granted herein including the Author’s intellectual property, infringes any rights of any third party, it shall notify Author in writing giving complete details of such circumstances and MAP shall make no comment or admission to any third party in respect of such circumstances. Author shall have the right in its sole discretion to decide what action (including without limitation litigation) if any to take in respect of any infringement or alleged infringement or passing off or any other claim or counterclaim brought or threatened in respect of the foregoing. Author shall bring or defend any proceedings whether for infringement or otherwise as they determine in their sole discretion, and MAP shall not be entitled to bring or threaten to bring any action regardless of any such decisions. MAP will, at the request of Author, reasonably cooperate with Author in any action, claim or proceedings brought or threatened in respect of the foregoing. All reasonable expenses incurred by MAP in cooperating with Author shall be borne by Author. All damages recovered from third parties shall be the exclusive property of Author. Notwithstanding the foregoing, in case of any misappropriation of the Digital Editions by others, MAP may in its discretion sue or employ such remedies as it deems expedient, and all such suits or proceedings shall be at MAP’s expense, and the proceeds of any recovery shall be MAP’s.
8. Representations, Warranties, & Indemnities: (a) Author represents and warrants to MAP that: (i) the Work as submitted is original; (ii) Author is the sole author, writer, creator, and proprietor of the Work, has full power to enter into this Agreement, and is the sole owner of all rights granted herein to MAP and such rights are not subject to any prior agreement, lien, or encumbrance that may interfere with the free exercise of any right granted to MAP hereunder; (iii) the Work has not heretofore been published, in whole or in part in Audiobook format; (iv) there are no claims or litigation pending, outstanding or threatened which may adversely affect or may in any way prejudice MAP’s exclusive rights in and to the Work or the copyright of any part thereof or any of the rights or licenses herein granted or conveyed; (v) neither the Work nor any part thereof is in the public domain; (vi) the Work does not contain any writings or other matter previously published (either by Author or by any other party) for which Author has not obtained satisfactory written permission from the owners for inclusion in the Work throughout the Territory, and Author shall deliver copies of these written permissions to MAP; (vii) the Work contains no obscene, libellous or any other unlawful matter, and in no way infringes, violates, or misappropriates any copyright, trademark or any other intellectual property right, and does not defame, or violate any personal or privacy right, or any other proprietary right, of any third party; (viii) the use, with reasonable care and skill, of any recipe, instruction, material, advice, or formula contained in the Work will not result in injury, and Author will include in the Work appropriate warnings
and safety precautions concerning any particular hazards that may be involved in the use of any such recipe, instruction, material, advice or formula; (ix) the Work and Author’s performance hereunder will comply with any and all applicable laws, rules, and regulations.
(b) MAP hereby represents, warrants that (i) the MAP IP shall not infringe any copyright, patent, trademark, or other rights of any person or business entity; and (ii) it shall comply with all applicable laws, rules, and regulations in the performance of its obligations hereunder.
(c) Each Party shall defend, indemnify and hold the other, its parent, subsidiaries and their respective officers, directors, employees and agents harmless from and against any and all third-party claims, actions, proceedings, damages and expenses (including reasonable attorneys’ fees), arising from (i) any breach of any of its representations or warranties set forth in this Agreement; and (ii) its gross negligence or willful misconduct in connection with the performance of its obligations under this Agreement. A party claiming indemnification hereunder will give the other party prompt written notice of all claims, provide reasonable cooperation in the investigation and defense, and permit the indemnifying party, at its expense, to defend the claim with the legal counsel of its choice. A party entitled to indemnification hereunder shall not settle any claims without the other party’s prior consent, which consent will not be unreasonably withheld. Further, the indemnified party, at its sole expense, may participate in the defense and settlement of the claim or action with counsel of its own choosing. This section shall survive any expiration or termination of this Agreement.
9. Limitation of Liability: EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF THE CONFIDENTIALITY PROVISIONS CONTAINED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR SAVINGS) WHICH MAY ARISE OUT OF THE MATTERS CONTEMPLATED BY THIS AGREEMENT.
10. Termination (a) If MAP fails to publish and commercially release a Digital Edition eighteen (18) months after the Delivery Date, the parties shall agree on a new publication and release date. If the parties are unable to agree, then Author may terminate this agreement with respect to such Work, upon written notice to MAP. Thereafter, all rights in such terminated Work shall revert to Author and Author shall be entitled to retain the amounts paid with respect to such Work, up to the date of such termination. Author shall not claim or institute any other damages, actions, or proceedings, either legal or equitable, including specific performance, against MAP. This agreement shall remain in full force and effect with respect to all other Works not so terminated.
(b) In addition to provisions authorizing termination hereunder, either party shall have the right to terminate this Agreement effective upon written notice to the other party, if: (i) the other party breaches a material provision of this Agreement, or fails to perform any of the material terms, conditions, agreements or covenants in this Agreement the non-breaching party may terminate this Agreement provided the breaching party has not cured the material breach within thirty (30) days of its receipt of written notice of breach; (ii) the other party breaches any of the material provisions of this Agreement and that breach is incapable of remedy; or (iii) the other party is unable to pay its debts when due, makes any assignment for the benefit of creditors, files any petition under the bankruptcy or insolvency laws, has a receiver or trustee to be appointed for its business or property, or is adjudicated bankrupt or insolvent, and fails to rectify the same within sixty (60) days after receipt of written notice from the other Party.
(c) Any termination of this Agreement, howsoever caused, shall be without prejudice to any claims either party may have including but not limited to an entitlement to damages or injunctive relief.
13. Effect of Termination: Upon expiration or termination of this Agreement, all rights granted to MAP herein shall forthwith revert to Author, with the following consequences:
(a) No portion of any prior payments made hereunder shall be repayable to MAP, and any and all payments due or to become due, including any Royalties shall be immediately due and payable, unless otherwise stated herein.
(b) After the expiration or termination of this Agreement, MAP shall not manufacture, advertise, distribute, license, or sell the Digital Editions. Notwithstanding the foregoing, any MAP end user with an active subscription may continue to access the Digital Editions until expiration of such subscription, and any license in effect as of the effective date of termination shall survive for the remainder of the term of such license.
14. Confidentiality: Author acknowledges that Author may have access to information, whether disclosed by MAP or its representatives, which is proprietary and confidential to MAP. Author will not disclose, or permit access to, any portion of MAP’s Confidential Information to any person except if: (a) such person is an employee, agent, or consultant of Author and has a need to know the Confidential Information; and (b) such person is legally bound by a written contract to comply with the provisions of this Agreement. “Confidential Information” shall mean (i) all MAP proprietary information, technical data, trade secrets and know-how, including, without limitation, research, product plans, customer lists, markets, computer software, computer programs, developments, inventions, discoveries, processes, formulas, algorithms, technology, designs, drawings, marketing and other plans, business strategies and financial data and information, whether or not marked as “Confidential”, (ii) any information received by MAP from third parties that is subject to a duty to keep such information confidential, and (iii) the terms, subject matter and existence of this Agreement. Promptly after termination of this Agreement, and/or upon MAP’s written request, Author shall either return to MAP all Confidential Information, or certify the destruction of all Confidential Information, in its possession. Confidential Information may be disclosed by Author as required by applicable law or regulation, but only if, prior to any such disclosure, Author shall, to the extent permitted by applicable law, first give MAP a reasonable opportunity to review the proposed disclosure, to comment thereon and to provide for the protection of the Confidential Information. The terms of this provision shall survive for a period of three (3) years following the date of termination of this Agreement.
15. Notices: All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this agreement, a Notice is effective only: (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.
16. No Waiver: The failure of either Party to exercise any right or the waiver by either Party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same of any other term of the Agreement. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.
17. Governing law: This Agreement and all matters arising out of or relating to this agreement, are governed by the laws of the State of Virginia, without giving effect to any conflict of laws provisions that would result in the application of the laws of a different jurisdiction. Any dispute arising out of or relating to this agreement, including breach, termination, or validity, which has not been resolved by negotiation within sixty (60) days after the date of the initial notice of a dispute from one party to the other, shall be finally resolved by arbitration in accordance with the American Arbitration Association expedited commercial rules, in effect on the date of this agreement, or the rules of another arbitration entity as mutually agreed upon by the parties. In any case, regardless of any rules of the selected arbitration entity to the contrary, only one arbitrator acceptable to both parties or, if they cannot agree, one arbitrator appointed by the administering agency, shall preside over and decide the arbitration and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction. The place of arbitration shall be the Crozet and County of Albemarle, Virginia.
18. Status of the Parties: Author and MAP are independent contractors under this Agreement. It is expressly understood that this Agreement does not establish a franchise relationship, partnership, or joint venture. Author and MAP each agrees that it shall be responsible for its own expenses and costs under this Agreement and that neither shall have any obligation to reimburse the other for any expenses or costs incurred in the performance of this Agreement.
19. Agent: Any person or organization specified as Author’s Agent shall be authorised to give notices, make and receive payments and do any other acts for and on behalf of Author under this Agreement, unless and until MAP receives written notice otherwise from Author.
20. Assignability: Neither Party may assign or otherwise transfer this Agreement or any of its rights and obligations hereunder or any portion thereof without prior written approval of the other, which will not be unreasonably withheld; provided, however, that MAP may, without the prior written consent of Author, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, or any portion thereof, to its parent or subsidiaries, or in conjunction with a merger or reorganization or to any acquirer of all or substantially all of its assets, provided that MAP shall give Author written notice of any such assignment no later than thirty (30) business days following such assignment. This Agreement will be binding on and inure to the benefit of Author and MAP and its permitted successors and assigns.
21. Severability: In the event that a court of competent jurisdiction determines that any portion of the Agreement is unenforceable, void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such invalid provisions were deleted.
22. Force Majeure: Any delay or failure of MAP or Author to perform its obligations under this Agreement shall be excused if and to the extent that such delay or failure is caused by an event beyond the reasonable control of the non-performing party, including without limitation, any act of God, actions by any government authority, fires, floods, natural disasters, riots, wars, labor problems (including lockouts, strikes, and slowdowns), failure of or interruptions in telecommunications or data transmission systems, or the inability to obtain materials, labor, equipment or transportation.
23. Counterparts: This Agreement may be executed in counterparts which, when signed by the parties, shall constitute a binding agreement.
24. Joint Authors. If there is more than one individual or entity constituting the “Author” hereunder, such individuals’ or entities’ rights and duties shall be joint and several, and each is hereby designated as agent for the other for purposes of service of process in any action or proceeding brought by MAP against either or both arising out of or in any way relating to this Agreement or its breach. In the event this Agreement is with more than one author and a dispute arises between the authors that threatens to involve MAP in litigation, MAP shall have the right to terminate this Agreement if such dispute is not settled or finally determined by court order within ninety (90) days, and, in that event, if the Work has not been published, any advances paid to or for the account of the authors shall be promptly repaid to MAP.
25. Entire Agreement: This Agreement constitutes the entire Agreement and understanding of the parties and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written. Section headings are provided for convenience purposes only and do not provide any modifications or substantive meaning to the terms and conditions of this Agreement. This Agreement may be amended or modified only by a subsequent Agreement in writing signed by each of the Parties and may not be modified by course of conduct. The parties hereto agree to execute such other writings, documents and instruments as may be necessary or desirable to effectuate the purposes of this Agreement.
