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
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:
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
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.
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
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
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.
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