TERMS AND CONDITIONS
The Publisher wishes to engage the Author to write the Work and the Publisher wishes (but does not undertake) to publish and promote the Work in the Territory.
The following definitions and rules of interpretation apply in this Agreement.
Definitions:
| “Book” | means the cookery book detailed in the Description of the Work on the front page of this Agreement, in whatever medium or format including but not limited to hardback, paperback, audio books and electronic books; |
| “Break Even Point” | means the point at which the financial value of the net sales of the Book reach the sum of the Total Costs of the Project; |
| “Copyright” | means all copyright and rights in the nature of copyright subsisting in the Work in any part of the world to which the Author is, or may become, entitled; |
| “Effective Date” | means the latest date on the front page of this Agreement showing acceptance of the terms; |
| “Royalty Payment Dates” | means 31 March, 30 June, 30 September and 31 December each calendar year; |
| “Project” | means the publication and promotion of the Book on the terms of this Agreement; |
| “Territory” | means worldwide; |
| “Total Costs of the Project” | means the costs incurred in undertaking the tasks and obligations in relation to the Book and the Project as set out in this Agreement, including but not limited to the costs associated with the editing, production and promotion of the Book as set out in clauses 3 and 8; |
| “VAT” | means value added tax or any equivalent tax chargeable in the UK or elsewhere; |
| “Work” | means the original literary work, of which details are set out in the front page of this Agreement. |
2. Form and delivery of the Work
2.1 The Author agrees to produce the Work and deliver it to the Publisher in accordance with the details set out on the front page of this Agreement, ensuring that any electronic copy of the Work does not contain any virus or other material likely to cause technological harm.
2.2 If the Author fails to deliver the Work by the deadline for the delivery of the first draft, the Publisher may serve notice on the Author to do so within 14 days. If the Author fails to do so within the 14 day notice period, the Publisher may then (at its sole discretion):
2.2.1 terminate this Agreement by written notice with immediate effect, and shall not be required to repay any sums to the Author and shall be entitled to repayment from the Author within 14 days of any third party costs incurred by the Publisher in relation to the Project; or
2.2.2 engage the services of a third party of its choice to complete the Work, having notified the Author (or the Author’s representatives or appointed trustee, as applicable) of its intention to do so. Any costs as a result shall be payable by the Author.
2.3 If the Publisher has terminated this Agreement for non-delivery under clause 2.2, the Author shall not for five years from the date of termination permit publication of the Work by any third party unless it has first offered it for publication by the Publisher under terms which are the same as those of this Agreement.
2.4 The Author shall not contribute to or facilitate the creation or publication of any work that the Publisher reasonably considers to be similar to the Work such that sales of it in the Territory would be likely to have an adverse effect either on the level of sales of the Work or on the prospects of licensing subsidiary rights in the Work on favourable commercial terms.
2.5 The photographer, journalist and any other third party instructed in relation to the Work shall be selected by the Publisher.
3. Editing and approval of the Work
3.1 The Publisher shall be entitled to serve written notice on the Author within 60 days of delivery of the Work that it requires the Author to make changes to the Work within a reasonable specified period of time to ensure that it is of a reasonably competent standard, complies with the terms of this Agreement and is commercially marketable and if the Author cannot, or refuses to, make such changes within the specified period, the Publisher shall have the right to engage a third party at the Author’s cost to make those changes to the Work or alternatively, if it so chooses, to terminate this Agreement. If the Publisher chooses to terminate, the Publisher shall not be required to repay any sums received from the Author and the Author will repay within 14 days any third party cost incurred by the Publisher.
3.2 The Publisher shall notify the Author in writing when it believes that the Work is in a form acceptable for publication (“Approval”).
3.3 The Author agrees that if, after Approval of the Work, the Publisher is required to make changes to the Work in order to minimise the likelihood of any legal liability arising from its publication, maximise its potential sales or remove or change any incorrect or bad material, the Publisher shall be entitled to make such further changes and/or to require the Author to do so. The Publisher will have the right to select and engage a legal adviser at the Author’s cost to review the Work to assess any potential liability that might arise from its publication.
3.4 The Author will not assert any rights under the Copyright, Designs and Patents Act 1988 to object to derogatory treatment of the Work as a consequence of the Publisher’s changes to the Work arising from translation of it, corrections and edits for house style, removal of problematic material and other edits.
4. Charges and payment
4.1 Within 14 days of the Effective Date, the Author shall pay to the Publisher a sum representing a half of the Total Costs of the Project followed by the remaining balance will be paid by the Author to the Publisher on completion of the production of the book before files are sent to print.
4.2 The Author shall pay to the Publisher royalties on sales of the Book in line with the Pricing description on the front page of this Agreement. In calculating these royalties, both parties may reasonably include any carriage or delivery costs where they are not covered by the customer. In this instance, The Publisher allows £75 for a pallet delivery, £10 for a full box delivery and £3.95 for a single book. Where the Work is included as part of a collection of Works (an “omnibus edition”), the royalty shall be calculated by calculating that proportion of the omnibus edition represented by the Work (on the basis of the number of recipes contained) and the appropriate portion of the royalty to be paid by the Author.
4.3 All sums due to the Publisher under this Agreement are exclusive of VAT.
4.4 All sums payable under this Agreement shall be paid:
4.4.1 in full without deduction or set off;
4.4.2 in sterling to the credit of a bank account to be designated in writing by the Publisher; and
4.4.3 on or before each Payment Date in respect of sales made during the three months preceding the previous Payment Date. The Publisher shall not be liable for any losses caused by exchange rate fluctuations or by any failure to remit or convert funds to the UK at a particular time or at a more favourable rate of exchange than actually used.
4.5 If the Author fails to make any payment due to the Publisher under this Agreement by the due date for payment, then, without limiting the Publisher’s remedies under clause 14, the Author shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Author shall pay the interest together with the overdue amount.
4.6 At the same time as payment of royalties falls due, the Author shall submit or cause to be submitted to the Author a statement in writing setting out:
4.6.1 the quarterly time period for which the royalties were calculated;
4.6.2 the number of copies of the Work sold in all formats during that quarterly time period, the publisher’s recommended retail price in the relevant part of the Territory and the applicable discount applied to each such copy;
4.6.3 the amount of royalties due and payable; and
4.6.4 any other particulars the Publisher may reasonably require.
4.7 The Author shall keep proper records and books of account showing the description and price (including as a separate figure any discounts applied to that price) of copies of the Work sold.
4.8 The provisions of this clause 4 shall remain in effect notwithstanding termination or expiry of this Agreement until the settlement of all subsisting claims by the Author.
The Author agrees that the Publisher may exercise all or any subsidiary rights including but not limited to anthology rights, digest book condensation rights, journal and magazine rights, merchandising rights, radio, television and public performance rights. The Publisher shall have absolute discretion to agree the terms of any sub-licences of such rights to third parties.
6. Licence and reservation of rights in the Work
6.1 The Author retains all copyright and other rights in the Work throughout the Territory and hereby grants to the Publisher the exclusive right to publish, promote and exploit the Work in whole, partial or adapted form, and to license others to do so, in the Territory in all languages in all existing and future media and formats.
6.2 Subject to the rights owned by the Author as per clause 6.1, the Publisher retains all rights in the intellectual property rights created in the Book and during the Project including all versions of the Book created during the editing process and any published version of it and any related publicity materials and merchandise.
6.3 The Author agrees not to license any third parties to supply the Work to, or in, the Territory or any part of the Territory.
7.1 Subject to clause 2.2 and clause 3.1 above, the Publisher shall produce and publish the Work following Approval in line with the front page of this Agreement unless prevented from doing so by events outside its control. All matters relating to production, publication and promotion shall be at the discretion of the Publisher.
7.2 If the Publisher requests or requires the Author’s approval for any stage of the production of the Book or promotion activities, the Author shall provide such approval within 14 days or a reasonable period of time stipulated by the Publisher, whichever is shorter. If the Author does not provide such approval within the time period, the Publisher shall be entitled to proceed as it sees fit. If the Author requires pictorial or text amendments (as part of its one tranche of amendments), the Publisher will only be required to undertake such amendments to the extent that it, at its sole discretion, considers it reasonable to do so.
7.3 The Publisher shall store the Books produced in the first print run at its own cost for a period of 12 months. Thereafter the storage costs shall be borne by the Author at £12 per pallet, per month (or an appropriate percentage of this). The Publisher shall deliver at its own cost (or up to a maximum of £75) one pallet (being a standard euro pallet of 800 mm (width) x 1,200 mm (length) in size) containing the Books to one address previously confirmed in writing by the Author. The costs for any further deliveries of the Book shall be borne by the Author.
7.4 After the first round print, the Publisher reserves the right to undertake any further print rounds and the quantity of items to be printed, if any.
7.5 The Author shall carry out such promotional services on such days and in such locations as the Publisher may reasonably require (at its sole discretion) to publicise and promote the Work. The Author’s obligations shall contain as a minimum, 5 days (each day being a 6 hour day) availability for publicity shoots, at least one complete book signing event, and undertaking all media opportunities within 1 month either side of the publication date.
7.6 The Publisher shall be entitled to use the name and likeness of the Author for the purpose of promoting sales of the Work.
7.7 If the Publisher receives a complaint or claim from a third party in relation to the Work or Book, the Publisher shall be entitled to suspend any and all of its obligations under this Agreement until the complaint or claim is reasonably resolved or settled to the satisfaction of the Publisher and, if necessary, its insurers.
8. Work going out of print or being remaindered
If the Publisher has stock of the Book in its control or possession and, in the reasonable opinion of the Publisher, sales of the Work are no longer commercially worthwhile bearing in mind the resources required to promote and sell copies of it, the Publisher shall have the right to sell at any price, or otherwise destroy or dispose of, its remaining stock of copies of the Work (“remainders”), having first given the Author the opportunity to buy within three weeks of written notification such remaining stock at the same price at which the Publisher intends to offer them to third parties or (where it intends to destroy or dispose of them without charge) in return for the costs of carriage.
9.1 The Author warrants that:
9.1.1 the Work will be the Author’s original work and will not be copied wholly or substantially from any other work or material or any other source;
9.1.2 the Author will be the sole creator of the Work and the legal and beneficial owner of all rights in the Work;
9.1.3 the Author is a qualifying person under section 154 of the Copyright, Designs and Patents Act 1988;
9.1.4 the Author has not assigned or licensed and will not during the term of this Agreement purport to assign or license any of the rights granted to the Publisher under this Agreement, and no previous version of the Work has previously been published in any part of the Territory;
9.1.5 the rights granted by this Agreement are free from any security interest, option, mortgage, charge or lien;
9.1.6 the exploitation of the rights granted by this Agreement has not infringed, and will not infringe, the rights of any third party; and
9.1.7 the Work will contain nothing that is defamatory or obscene, or unlawful in any other way.
10.1 The Author shall indemnify and hold the Publisher harmless against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Publisher arising out of or in connection with any breach of the warranties in clause 9 above or this Agreement. At the request of the Publisher and at the Author’s own expense, it shall provide all reasonable assistance to enable the Publisher to resist any claim, action or proceedings brought against the Publisher as a consequence of that breach.
10.2 This indemnity shall apply whether or not the Publisher has been negligent or at fault.
11.1 Either party shall have a duty to notify the other party of any infringement or suspected infringement of the Copyright. The Publisher shall have absolute discretion in addressing any such infringement which is likely to affect the Publisher’s rights under this Agreement, including issuing and conducting proceedings against the suspected infringer.
11.2 The Author agrees to be joined in as a party to any proceedings described in clause 11.1.
12. Assignment and other dealings
The Author shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
This Agreement shall commence on the Effective Date and continue until terminated in accordance with clause 2.2, clause 3.1, clause 14 or clause 18.9.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so.
15. Consequences of termination
15.1 On expiry or termination of this Agreement for any reason and subject to any express provisions set out elsewhere in this Agreement:
15.1.1 all outstanding sums payable by the Author to the Publisher (including the Total Costs of the Project or any part thereof) shall become due and payable; and
15.1.2 the Author shall return promptly to the Publisher at the Author’s expense all records and copies of any information of a confidential nature communicated to it by the Publisher, either preparatory to, or as a result of, this Agreement, to the extent such material remains confidential.
15.2 The expiry or termination of this Agreement for any reason shall not affect any provision of this Agreement which is expressed to survive or operate in the event of expiry or termination (including but not limited to clause 9) and shall be without prejudice to the provisions of this clause 15 and to any rights of either party which may have accrued by, at, or up to the date of such expiry or termination.
The Publisher may at any time, without notice to the Author, set off any liability of the Author to the Publisher against any liability of the Publisher to the Author, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If the liabilities to be set off are expressed in different currencies, the Publisher may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Publisher of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
18. Miscellaneous
18.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.2 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.3 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
18.4 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.5 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
18.6 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18.7 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
18.8 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
18.9 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this Agreement by giving 14 days’ written notice to the affected party.
18.10 This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
18.11 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.