Electronic Publishing Agreement - DOC

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					                              Electronic Publishing Agreement

Agreement made on the (date), between (Name of Developer), a corporation organized and
existing under the laws of the state of (name of state), with its principal office located at (street
address, city, state, zip code), referred to herein as Developer, and (Name of Author) of (street
address, city, state, zip code), referred to herein as Author.

Whereas, Author is the author and/or owner of the certain printed materials; and

Whereas, Developer is a developer of interactive software products; and

Whereas, Author desires Developer to prepare an interactive software version of Author's
printed materials;

Now, therefore, in consideration of the obligations and agreements set forth in this Agreement
and other good and valuable consideration, the receipt and adequacy of which are
acknowledged, Developer and Author agree as follows:

I.     Definitions.
       A.      Concept Document means the functional specifications of the Product, as
       agreed by Developer and Author in accordance with Section II.B below, describing the
       features and functionality of the Product.

       B.       Confidential Information means the confidential and valuable information of a
       party which the party desires to protect against disclosure or competitive use and which
       is in written form or is disclosed orally, and is designated either orally or in writing as
       being proprietary or confidential. Developer's Confidential Information includes, without
       limitation, the Software and all information and documentation relating to this

       C.    Development Schedule means the schedule for the development of the
       Concept Document and the Product attached as Schedule I.C.

       D.      End User means a customer of Author who is authorized by an end user license
       agreement as specified in Section V.B to use the Product for the End User's personal or
       internal business purposes.

       E.       Intellectual Property Rights means patent rights, copyright rights (including, but
       not limited to, rights in audiovisual works and moral rights), trade secret rights, and any
       and all other intellectual property rights recognized by the law of the applicable

       F.     Author Content means the written work known as (name of work) and such
       other written materials owned or to be prepared by Author, which Author will deliver to
       Developer for inclusion in the Product, or which Developer shall prepare or have
       prepared under this Agreement, each as more particularly described in Schedule I.F.

       G.       Net Revenues means all gross receipts from any transfers (including shipments)
       or licenses of copies of the Product to End Users by Author or any sub-distributor, less
       freight, insurance, other shipping fees, and returns.
      H.      Product means the object code version of the software product which includes
      certain components of the Software and the Author Content and which conforms to the
      Concept Document.

      I.     Software means Developer's proprietary computer software as more particularly
      described in Schedule A.

II.   Development of the Product; Delivery and Acceptance.
      A.      Authorized Representatives. The authorized representative for Developer
      is (Name of Developer’s Representative). The authorized representative for Author
      is (Name of Author’s Representative). All discussions involving changes in the Concept
      Document shall be conducted between these persons (except, as to either party, that
      such party may designate an alternate representative in writing) and any agreement on
      significant changes to the Concept Document shall be reduced to a writing signed by
      each of the authorized representatives.

      B.      Concept Document. Developer will design and develop the Concept Document
      and deliver the Concept Document to Author for its review and approval on or before the
      applicable milestone date in the Development Schedule. Author shall review the
      Concept Document and prepare a written report to Developer listing any reasonable
      modifications or changes to the Concept Document. Upon receiving such report,
      Developer will use its best efforts to promptly revise and modify the Concept Document
      in accordance with the report. The above procedure will be repeated until Author accepts
      the Concept Document; provided, however, that if after repeated attempts Developer is
      unable to modify the Concept Document in a manner satisfactory to Author, Developer
      may terminate this Agreement, and upon such termination Developer shall return to
      Author any fees previously paid to Developer under this Agreement, except amounts
      paid to Developer on a time and materials basis.

      C.       Developer to Develop. Upon Author's acceptance of the Concept Document,
      Developer will create, design, develop, and deliver the Product in accordance with the
      Development Schedule. Any delays in Developer's performance caused by Author's
      failure to deliver any Author Content in accordance with the Development Schedule, or
      as a result of changes or modifications to the Concept Document requested by Author
      (either prior to or following Author's acceptance of the Concept Document), shall not
      constitute a breach of this Agreement by Developer.

      D.       Author Development Review. During Developer's development of the Product,
      Author shall be entitled to review, at its sole expense, Product components at the
      milestone dates listed in the Development Schedule. Developer will work in good faith
      with Author to implement modifications or changes to the Product components
      suggested by Author and to correct any errors in such components that Author may
      discover; however, the parties agree and acknowledge that Developer shall be
      responsible for managing all aspects of the Product development and may determine in
      its sole discretion not to implement such modifications or changes or not to correct any
      such errors at that point in the development cycle.

      E.     Acceptance of Product by Author.
             1.      Developer shall deliver the final Product to Author on or before (date), as
             set forth in the Development Schedule. For purposes of this Section II.E, the
             Product will be deemed delivered when actually received by Author.
              2.      Acceptance of the Product by Author shall not be unreasonably withheld
              and will be deemed to have taken place on the first to occur of any of the

                     a.      Author uses the Product or any part or component of it or any
                     related user documentation for purposes of demonstration or sale, or
                     licenses or otherwise ships the Product to sub-distributors or End Users;

                     b.      Ten (10) days have elapsed from the date of delivery without
                     Author having given Developer written notice of a material failure of the
                     Product to substantially conform to the Concept Document, provided,
                     however that minor nonconformities with the Concept Document which do
                     not substantially impair the performance of the Product shall not
                     constitute a failure of the Product to conform to the Concept Document; or

                     c.      Author notifies Developer in writing that it accepts the Product.

              3.      In the event that Developer receives a notice from Author of a material
              failure of the Product to substantially conform to the Concept Document,
              Developer shall attempt through best efforts to correct the nonconformance. The
              corrected Product shall be delivered to Author for acceptance pursuant to this
              Section II.E. If Developer cannot, after repeated efforts, remedy such
              nonconformance, Developer may terminate this Agreement provided that
              Developer returns to Author any fees previously paid to Developer under this
              Agreement, except amounts paid to Developer on a time and materials basis.

III.   License.
       A.      Grant of License by Author. Author grants to Developer a non-exclusive right
       and license to use the Author Content solely for the purpose of developing the Product,
       and supporting, updating and enhancing the Product (to the extent provided in this
       Agreement). Developer may edit, alter, or modify the Author Content as may be
       necessary to create or develop the Product in accordance with the Concept Document.
       Developer may make such copies of the Author Content as may be necessary to create
       or develop the Product.

       B.       Grant of License by Developer. Developer grants Author a non-exclusive, non-
       transferable, world-wide, perpetual (subject to termination in accordance with Section
       XII) license to market, distribute, and sublicense the Software, as incorporated into or
       referenced by the Product, in object code form, to End Users, directly and indirectly.

       C.     Bundled Products. Author may not combine or bundle the Product with other
       products without a prior written approval of Developer.

       D.      Reproduction. Subject to the terms of this Agreement, Developer grants Author
       a perpetual (subject to termination in accordance with Section XII), non-transferable
       license to reproduce the Software as incorporated into or referenced by the Product for
       distribution pursuant to Section III.B.

IV.    Proprietary Rights.
     A.      Developer Authorship. Except for the limited licenses and rights granted under
     this Agreement, the Software and all Intellectual Property Rights and the Developer
     Trademarks are, and as between the parties shall at all times remain, the sole and
     exclusive property of Developer. The rights and licenses granted to Author under this
     Agreement with respect to the Software shall in no way restrict Developer's rights in the
     Software or any Intellectual Property Rights, nor will it limit or prevent Developer from
     using, licensing, distributing, selling, or otherwise transferring the Software (or any
     portion of it) or any Intellectual Property Rights in any manner as Developer deems
     appropriate. Author's sole rights with respect to the Software are as set forth in Sections
     III.B and III.D.

     B.      Intellectual Property Rights Notices. Author will place the Intellectual Property
     Rights notices reasonably requested by Developer, if any, on the Product, the Product
     packaging, and any documentation delivered to sub-distributors or End Users together
     with the Product and will reproduce and display such notices on each copy it makes (or
     has made) of the Product.

     C.      Author Ownership. Subject to Developer's ownership rights as set forth in
     Section IV.A above (and at all times subject to the licenses granted under Sections III.B
     and III.D), the Author Content and the Product are, and as between the parties shall
     remain, the property of Author.

     D.      Third Party Infringement. Developer and Author each reserve the right at its
     discretion to assert claims against third parties for infringement or misappropriation of its
     Intellectual Property Rights in the Product. Developer and Author will promptly notify the
     other of any claims that the Product infringes any third party's Intellectual Property

V.   Distribution and Exclusivity.
     A.      Marketing and Distribution of the Product. Author shall (i) market the Product
     in a commercially reasonable manner, as more particularly described in Schedule V.A,
     and (ii) use its best efforts to promote, license, and distribute the Product to End Users.
     The costs of such marketing, promoting, licensing, and distribution shall be borne solely
     by Author.

     B.      End User Agreement. Author may not distribute the Product to any End User
     unless such End User is subject to a shrink-wrap end user software license agreement
     with Author that protects Developer's proprietary rights in the Product to at least the
     same degree as the terms and conditions of Developer's shrink-wrap end user software
     license agreement, a copy of which is attached as Schedule B.

     C.     Subdistribution. Author may distribute the Product through such subdistributors
     as Author deems appropriate. In all cases, subdistributors of Author are subject to the
     terms and conditions of this Agreement. Author shall require, by written contract, that
     each of its subdistributors comply with Author's obligations under this Agreement as if
     such subdistributor stood in the position of Author, except that Author shall be solely
     responsible for making all payments to Developer under this Agreement.

     D.      Trademarks. The parties agree and acknowledge that the Product may be
     advertised, marketed, licensed, and distributed under Author's brand name; provided
     however, that the Product, the packaging of and documentation relating to the Product,
      and the marketing materials and advertisements for the Product, clearly indicate to
      consumers through the use of Developer's trade name and its proprietary trademarks
      that the Product was developed by Developer and utilizes Developer's proprietary
      technology. In connection therewith, Developer grants Author and its authorized
      subdistributors a nonexclusive license to use the following trade names and trademarks
      (the Developer Trademarks) on the Product, its packaging, and documentation and in
      any related marketing materials and advertisements: (list of trademarks). Author's use of
      the Developer Trademarks shall be in accordance with and subject to such written
      specifications and policies regarding the use of the Developer Trademarks by third
      parties as Developer may from time to time make available to Author. Upon termination
      of this Agreement, except as otherwise specifically set forth in this Agreement, Author
      will no longer make any use of the Developer Trademarks.

VI.   Development Payments and Royalty Payments.
      A.      Development Payments. Author shall pay Developer the amounts set forth in
      the Development Schedule at the times set opposite such amounts (each a
      Development Fee and collectively the Development Fees). The parties acknowledge
      that prior to the execution of this Agreement Developer has been providing services to
      Author in connection with development of the Product on a time and materials basis (“T
      & M Payments). As of the Effective Date, the amount of such T & M Payments which
      have been made or which are due and owing is $____________.

      B.     Advances Credited Against Royalties. Author may credit the Development
      Fees and T & M Payments (collectively, the Advances) against any royalties due to
      Developer under Section VI.C until the full amount of the Advances have been credited
      against such royalties.

      C.      Royalties. Author shall pay Developer royalties of _____% of the Net Revenues.
      Subject to Section III.C, if the Product is distributed in a bundle with other products, the
      royalties will be $__________ for each copy of such Product distributed in a bundle to an
      End User.

      D.       Payment Terms. Royalties shall be payable by Author to Developer on a
      monthly basis for so long as the Product is transferred or licensed to End Users as
      follows: Author shall pay to Developer royalties with respect to transfers or licenses of
      copies of the Product made during each calendar month within thirty (30) days following
      the close of the month in which the transfer or license occurs. The first royalty payment
      shall be made to Developer within thirty (30) following the close of the month in which
      the first copy of the Product is transferred or licensed to an End User. Failure to make
      any such royalty payment shall constitute a material breach of this Agreement.

      E.      Reports. Within thirty (30) days following the close of each calendar quarter,
      commencing with the close of the calendar quarter in which the first copy of the Product
      is transferred or licensed to a subdistributor or End User, for so long as any royalties are
      payable under this Agreement, Author shall deliver to Developer a report containing all
      information reasonably necessary for computing and/or confirming the royalties which
      have become due under this Agreement since the immediately preceding report.

      F.      Audit Rights. Author shall keep records of all transactions for which royalties are
      due, in sufficient detail to enable royalties payable under this Agreement to be verified,
      for a period of three (3) years from the date of payment of such royalties. Author shall
        permit such records to be inspected by Developer up to twice in each calendar year. All
        such examinations shall be made at Developer's expense, unless such an examination
        discloses an underpayment in excess of ____% of the amount actually due, in which
        event Author shall pay the full expense of such examination.

        G.      Taxes. All amounts payable under this Agreement are exclusive of all sales,
        use, value-added, withholding, and other taxes and duties. Author will pay all taxes and
        duties assessed in connection with this Agreement by any authority within or outside of
        the U.S., except for taxes payable on Developer's net income. Developer will be
        promptly reimbursed by Author for any and all taxes or duties that Developer may be
        required to pay in connection with this Agreement or its performance under this

        H.      Late Payments. Payments made under this Agreement after their due date will
        incur interest (commencing as of the due date) at a rate equal to ___% per month or the
        highest rate permitted by applicable law, whichever is lower.

VII.    Maintenance and Support.
        A.    By Author. Author will be solely responsible for providing warranty, support, and
        maintenance services to its subdistributors and End Users.

        B.     By Developer. For so long as Author is not in default of its obligations under
        Section V.A and continues to actively distribute the Product, Developer will provide
        Author with all maintenance and upgrades on the Product (including without limitation
        improvements, bug fixes, updates, and enhancements to the Product) (collectively,
        Maintenance Services), from time to time, as and when Developer and Author mutually
        may determine that such maintenance and upgrades are appropriate. Author shall pay
        Developer a flat rate of $____________ per person hour, plus materials (the
        Maintenance Fees), for such services and such payments shall be made within
        (number) days following Author's receipt of Developer's invoice.

VIII.   Confidentiality.
        A.     Protection of Confidential Information. Developer and Author will (i) not
        disclose to any third party or use any of the other party's Confidential Information except
        as expressly permitted in this Agreement; and (ii) take all reasonable measures to
        maintain the confidentiality of all Confidential Information of the other party in its
        possession or control, which will in no event be less than the measures it uses to
        maintain the confidentiality of its own most valuable Confidential Information.

        B.    No Reverse Engineering. Author will not disassemble, decompile, or reverse
        engineer the Product, either in whole or in part.

        C.      No Copying. Author will not copy or otherwise reproduce the Product, in whole
        or in part, except for making reasonable numbers of back-up copies or as express
Description: Electric Publishing is the process of creating and disseminating information via electronic means including email and via the Web. Electronically published materials may originate as traditional paper publishing or may be created specifically for electronic publishing. It is not really the method of creating the material that makes it electronic publishing. It is the method of disseminating the material. Just using a computer to create something does not make it electronic publishing. If that were the case, anything produced on an electric typewriter or printed on a press or a desktop printer that requires electricity to run could be called electronic publishing. However, publishing material in formats other than print (which is primarily Internet/Web and email) is electronic publishing. PDF and similar formats are also electronic publishing when the end-product (the PDF file) is intended primarily for on-screen viewing.
PARTNER William Glover
I received my B.B.A. from the University of Mississippi in 1973 and my J.D. from the University of Mississippi School of Law in 1976. I joined the firm of Wells Marble & Hurst in May 1976 as an Associate and became a Partner in 1979. While at Wells, I supervised all major real estate commercial loan transactions as well as major employment law cases. My practice also involved estate administration and general commercial law. I joined the faculty of Belhaven College, in Jackson, MS, in 1996 as Assistant Professor of Business Administration and College Attorney. While at Belhaven I taught Business Law and Business Ethics in the BBA and MBA programs; Judicial Process and Constitutional Law History for Political Science Department); and Sports Law for the Department of Sports Administration. I am now on the staff of US Legal Forms, Inc., and drafts forms, legal digests, and legal summaries. I am a LTC and was Staff Judge Advocate for the Mississippi State Guard from 2004-2008. I now serve as the Commanding Officer of the 220th MP BN at Camp McCain near Grenada, MS. I served on active duty during Hurricanes Dennis (July, 2005), Katrina (August, 2005) and Gustav in 2008. I played football at the University of Mississippi in 1969-1971 under Coach John Vaught. I am the author of the Sports Law Book (For Coaches and Administrators) and the Sports Law Handbook for Coaches and Administrators (with Legal Forms),