PUBLISHER / WRITER AGREEMENT (Non-Exclusive Rights – OLP Wire Service)
AGREEMENT made this day between you, (hereinafter called the WRITER), and OLP Wire Service (hereinafter called the PUBLISHER);
PUBLISHER operates an Internet based distribution service for archiving, storing, searching, selling, and delivering copyright protected articles and electronic publications and other materials (digital content); and, WRITER creates articles of interest and will submit to PUBLISHER articles of varying length on topics of interest to the senior citizen and baby boomer demographic (hereinafter called WRITING); and,
WRITER understands that PUBLISHER will obtain WRITING from WRITER for the purpose of resale and distribution through PUBLISHER’S network of content buyers. WRITER hereby grants PUBLISHER the right to resell the WRITING. To promote sales, WRITER grants PUBLISHER the right to freely distribute all marketing data including art, excerpts, review information and all other metadata associated with WRITING;
In consideration of the mutual covenants herein contained, the parties agree as follows:
1. Representations and Warranties
The WRITER warrants and represents that the WRITING is original with the WRITER, that the WRITER is sole WRITER and proprietor of said WRITING with full power and right to enter into this Agreement and to grant the rights hereby conveyed to the PUBLISHER; that said WRITING contains no matter which is libelous or defamatory and infringes no right of privacy or copyright; that the WRITER has not heretofore and will not hereafter during the term of this Agreement enter into any agreement or understanding which would conflict with the rights herein granted to the PUBLISHER. Written permission from previous rights owners may be required. If the WRITING includes quotations or illustrations in which the copyright does not belong to the WRITER then the WRITER shall obtain written permission for its use from the owners and shall pay any fees or costs involved, and on request the WRITER will send to the PUBLISHER copies of the permissions obtained and proof of copyright fees paid by the WRITER. If the WRITER shall breach this warranty, the PUBLISHER shall be entitled to injunctive relief in addition to all other remedies which may be available to it.
2. Ownership Rights
The WRITER grants to the PUBLISHER for a period of ten (10) years from the date of this Agreement the non exclusive right to display, copy, archive, make available on the Internet, publish, transmit, price and sell WRITING throughout the world in paper and digital format (digital format includes electronic download, CD/DVD, or any other digital format known or unknown at this time). The WRITER undertakes to publish the WRITING in those electronic formats, both encrypted and unencrypted, deemed by the PUBLISHER to be appropriate and suitable at the time of publication.
PUBLISHER acknowledges that all right, title and interest in and to the ownership of all intellectual property including copyrights and trademarks used in connection with the WRITING are the property of WRITER, or its licensor and licensee and in no event; including the termination of this Agreement shall PUBLISHER obtain any right or interest in such intellectual property or copyrights.
The PUBLISHER shall not assign the rights granted in this Agreement or the benefits thereof without the WRITER'S prior written consent.
The buyer of WRITING shall be granted one-time publication rights by the WRITER on any purchase through the PUBLISHER’S service.
3. Format, Editing and Acceptance
The WRITER will submit WRITING to the PUBLISHER electronically via the website. All WRITING is subject to acceptance by PUBLISHER. The PUBLISHER may reject WRITING by notice to WRITER, or by failing to upload WRITING to the “store” section of website. Alternatively, PUBLISHER may request that WRITER revise the work.
The WRITING shall be subject to editing and alteration by the PUBLISHER at the original time of submission. In addition, any Buyer of the WRITING via the PUBLISHER’s website shall have the right: (a) to edit and modify the content of the WRITING in such style as it deems best suited to its purpose; (b) to fix or alter the title of the WRITING; (c) to determine all publishing details over the WRITING, including placement of the WRITING, date of publishing, form, style, size, and type and to whom it ultimately publishes the WRITING to. Furthermore, any Buyer of the WRITING agrees to a one-time publication right and to use the byline, “OLP Wire Service” or no byline at all.
4. WRITER’S Name and Likeness
WRITER consents to PUBLISHER use of name, pen name, likeness, identity, logos, trademarks, and trade symbols, if any, for the purpose of fulfilling this Agreement and for the promotion, advertising, distribution, marketing and production of PUBLISHER’S web site, related publication(s), or derivatives therefrom, and for general organizational and promotional purposes.
PUBLISHER’S website may keep WRITER’S identity anonymous. All WRITERS will receive an identification number for the purposes of cataloguing articles with authors.
5. Royalties
The PUBLISHER will pay the WRITER an agreed upon royalty of the full retail price or a special promotional price via PUBLISHER’S wire service, less sales taxes and returns (if any). No advance will be paid by the PUBLISHER to the WRITER. Royalty percentage shall be defined and documented in Attachment “A” of this Agreement.
6. Statements and Payments
The PUBLISHER shall forward royalty statements to the WRITER or to the WRITER’S agent, on or within 30 days of March 31, June 30, September 30, and December 31 of each year of this Agreement, along with any payments due. A royalty statement will show number of copies sold in each calendar quarter and the full retail price or special promotional retail price, as applicable, less deductions for sales taxes and returns, if applicable, and the total remitted to WRITER.
7. Indemnification
WRITER agrees to indemnify and hold harmless PUBLISHER against any claim, loss, damage, liability and expenses (including reasonable attorney’s fees and costs associated therewith or with the enforcement of this indemnity) arising from any actual or alleged breach of any of WRITER’S representations, warranties or from any other professional liability for the WRITING, as attributed to WRITER. WRITER shall further indemnify and hold PUBLISHER harmless from any claim, suit or action and any expense or damage in consequence thereof, asserted by reason of PUBLISHER’S exercise or enjoyment of any of its rights hereunder or by reason of any warranty or indemnity made by PUBLISHER in connection with the exercise of any such rights, as provided in this Agreement. PUBLISHER shall have the right, but not the obligation, to defend such claim, suit or action by counsel of its selection and with the consent of WRITER to settle the same on such terms as it deems advisable. In the event a final judgment is entered against PUBLISHER, WRITER shall be liable for and shall pay to PUBLISHER the amount of the judgment and shall reimburse PUBLISHER for any and all expenses incurred in the action, including attorney fees. In the event of a settlement or in the event such claim, suit or action is discontinued or dismissed without liability to PUBLISHER, WRITER shall be liable for and pay to PUBLISHER any amounts paid by PUBLISHER in settlement, including PUBLISHER’S attorney fees and other out-of-pocket expenses.
8. Independent Contractor
The WRITER shall be free to exercise discretion and independent judgment as to the method and means of performance of services pursuant to this Agreement. The WRITER is not considered to be an employee of the PUBLISHER, and as such, the WRITER is not entitled to, or eligible to participate in, any benefits or privileges given or extended by the PUBLISHER to its employees. The WRITER declares and states that it has complied with all federal, state and local laws regarding taxes, business permits, insurances, and licenses that may be required to carry out the work to be performed under this Agreement.
9. No Authority to Bind PUBLISHER
The WRITER has no authority to enter into contracts or agreements on behalf of the PUBLISHER. This Agreement does not create a partnership between the parties.
10. Trade Secrets and Confidential/Proprietary Information of PUBLISHER
(a) WRITER agrees that all information relating to all PUBLISHER operations, regardless of its type or form, including information relating to the website or publications prior to the publication or posting and this Agreement and all attachments to this Agreement, are the trade secrets and confidential/proprietary information of PUBLISHER.
(b) WRITER agrees that it will not disclose and will hold in confidence any and all proprietary information, including PUBLISHER’S trade secrets, and other matters owned by PUBLISHER brought to WRITER’S attention (collectively the “Information”) by PUBLISHER, whether in written or oral form, during the course of this Agreement, and forever afterward. Without the prior written consent of PUBLISHER, the WRITER agrees not to use the Information for any purpose other than for the stated purposes of this Agreement. Upon termination of this Agreement, the WRITER agrees to promptly return to the PUBLISHER all of the Information, in whatever form, that the WRITER may then have in its possession or control.
11. Term of Agreement
This Agreement shall be effective as of the date specified above and shall remain for ten years PUBLISHER may renew or terminate this Agreement at any time by notice to WRITER. WRITER may terminate this Agreement upon 60 days' prior written notice.
12. General Provisions
(a) Representations and Warranties - Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party's performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including copyright, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party.
(b) Arbitration and Governing Law - If at any time during the term of this Agreement any dispute, difference, or disagreement shall arise upon or in respect of the Agreement, and the meaning and construction hereof, every such dispute, difference, and disagreement shall be referred to a single arbiter agreed upon by the parties and be governed under the provisions of the Pennsylvania Arbitration Act, or if no single arbiter can be agreed upon, an arbiter or arbiters shall be selected in accordance with the rules of the American Arbitration Association and such dispute, difference, or disagreement shall be settled by arbitration in accordance with the then prevailing commercial rules of the American Arbitration Association, and judgment upon the award rendered by the arbiter may be entered in any court having jurisdiction thereof. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania without regard to the principles of its conflict of laws.
(c) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
(d) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon electronic transmission when delivered by verified facsimile transmission or delivery receipt / read receipt electronic mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties.
(e) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
(f) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. PUBLISHER reserves the right to modify this Agreement at any time.
(g) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.
Attachment “A”
Royalty Schedule
The PUBLISHER will pay the WRITER a royalty equal to fifty (50%) percent of the full retail price of the hard copy or at special promotional retail price via PUBLISHER’S wire service, less sales taxes and returns (if any). No advance will be paid by the PUBLISHER to the WRITER.
IN WITNESS WHEREOF, the parties hereto have executed this Attachment as the day and year first written above
WRITER OLP WIRE SERVICE
By: __________________________ By: _________________________
WRITER Donna K. Anderson
President