Publishing Agreement

This Publishing Agreement (“Agreement”) entered into by and between MidTown Publishing Inc., a New York Corporation, with corporate offices at 1001 Avenue of Americas, 12th Floor, New York, NY 10018 (“PUBLISHER”) and the person who submits information to PUBLISHER (“AUTHOR”), for the publication of AUTHOR’S CONTENT, as hereinafter more particularly described, into digital and print formats (“AUTHOR’S WORK”).

Preamble

AUTHOR’S submission of AUTHOR’S CONTENT for distribution by PUBLISHER through upload or the submission of AUTHOR’S CONTENT to PUBLISHER by any means constitutes AUTHOR’S agreement to be bound by the terms and conditions of this Agreement.

1. DEFINITIONS Capitalized words and phrases used in this Agreement have the following meanings:

(a) “AUTHOR’S CONTENT” means print, text, Authorized Artwork and underlying works that AUTHOR has designated for digital distribution and/or print distribution by PUBLISHER, an affiliated company, e-Book Aggregator, or Licensee. Any such print, text, Authorized Artwork and underlying works uploaded or submitted by AUTHOR, are owned, licensed to, or controlled by AUTHOR, and may be used for all purposes specified herein.

(b) “AUTHOR’S DERIVATIVE RIGHTS” include, but are not necessarily limited to: (a) translation rights: (b) abridgement rights; (c) serial rights; (d) merchandising rights: (e) stage, film, television, video, radio, and dramatization and documentary rights; (f) picture book rights; (g) electronic publishing rights; (h) publication, sale, and distribution rights in relation to AUTHOR’S WORK and/or any part thereof in all editions and in all languages; (i) exploitation rights in relation to AUTHOR’S WORK in any other form as may be invented in the future; (j) and the right to sell, resell, license or re-license to anyone any or all of the foregoing, except those rights licensed to PUBLISHER. AUTHOR’S DERIVATIVE RIGHTS set forth in sub-paragraphs (g), (h), and (i) are specifically licensed to PUBLISHER in accordance with the provisions of this Agreement.

(c) “AUTHOR’S INTELLECTUAL PROPERTY” includes any Authorized Artwork supplied by AUTHOR, e-book cover file, AUTHOR’S manuscript in its original file format (with edits), any sell sheets, press materials, press releases, and any other product created by PUBLISHER for AUTHOR with the exception of print book covers, formatted interior print book files, Mobi/Kindle and ePub files, book trailers, all of which remain the sole and exclusive property of PUBLISHER.

(d) “AUTHOR’S OWNERSHIP RIGHTS” means AUTHOR’S right, title and interest in and to AUTHOR’S CONTENT, AUTHOR’S WORK, including all copyrights, trademarks, AUTHOR’S DERIVATIVE RIGHTS, and AUTHOR’S INTELLECTUAL PROPERTY.

(e) “AUTHOR’S PROFILE PAGE” means a webpage created by PUBLISHER for AUTHOR. The AUTHOR’S PROFILE PAGE may contain AUTHOR’S biographical information and picture, published books, links to AUTHOR’S personal website, external links to AUTHOR’S Facebook, Twitter, or other social media site(s), links to sites where AUTHOR’S Print Products are offered for sale, and such other features as PUBLISHER may add from time to time.

(f)(1) “AUTHOR’S Royalty Share of Digital Text Product Net Proceeds” means fifty (50%) percent of the Digital Text Product Net Proceeds.

(f)(2) “AUTHOR’S Variable Royalty on Print Products” means AUTHOR’S Profit on the sale of AUTHOR’S Print Products that varies depending on retail price, printing and shipping costs, and PUBLISHER’S Discount for Print Products; provided, moreover, AUTHOR’S Variable Royalty on Print Products will be subject to additional Discounts charged by Amazon.com  should AUTHOR elect to use the Amazon.com Expanded Distribution Program. AUTHOR shall be responsible for making payments arrangements for Print Products with PUBLISHER, to PUBLISHER’S reasonable satisfaction.  In any event, AUTHOR’S payment for books shipped shall be due and payable within thirty days of shipment.

(g) “AUTHOR’S Wholesale Cost For Print Products” includes the printing cost from PUBLISHER’S printer, shipping costs, and PUBLISHER’S Discount for Print Products.

(h) “AUTHOR’S WORK” means the aggregation of AUTHOR’S CONTENT into a finished product, whether Digital Product or Print Product.

(i) “Authorlog™” means PUBLISHER’S integrated, real-time tracking portal that features:

  • AUTHOR personal work station
  • query letter portal for upload of AUTHOR’S query letter template
  • display of AUTHOR’S WORK (current and past) in “My Projects” portal, together with:

i. overview of PUBLISHER’S conversion of AUTHOR’S manuscript to Mobi/Kindle and ePub files,

ii.Soft Proof of AUTHOR’S e-book covers and print covers for review by AUTHOR,

iii.Soft Proof of interior pages for review by AUTHOR,

iv.status reports regarding uploads of AUTHOR’S e-books to PUBLISHER’S Licensees,

  • AUTHOR’S royalty payments from Licensee e-bookstores in “My Royalties” portal,
  • PUBLISHER’S blog that includes industry updates, book publishing news and related features.
  • podcasts by John DuFresne, a professor in the graduate MFA program of Creative Writing at Florida International University, a published author, a Guggenheim Fellow, and frequent speaker at industry seminars, book fairs, writer retreats, and other author events,
  • “featured author” status with the publication of AUTHOR’S book,
  • distribution of your e-books to the major online e-bookstores,
  • distribution services for printed books with Amazon Fulfillment Services.
  • AuthorlogChat™ with online chat and message boards  exclusively for writers.
  • other features to facilitate AUTHOR’S use of PUBLISHER’S services.

(j) “Authorlog™ Account” means an online account established by AUTHOR for purposes of accessing Publisher Services, uploading AUTHOR’S CONTENT, receiving real-time updates for AUTHOR’S CONTENT in the publishing process, and retrieving other services offered on PUBLISHER’S Website or on PUBLISHER’S Imprint Websites.

(k) “AuthorlogChat™” is a feature of Authorlog™ that provides platforms for online chat and a message board with numerous forums exclusively for writers.  AUTHOR’S participation is subject to the terms and conditions of  the Online Chat & Message Board Services Guidelines that are posted on PUBLISHER Website and PUBLISHER Imprint Websites.

(l) “AuthorWebChat™is a video-based online service that features interviews with authors who have published with MidTown Publishing.  A copy of the author interview is uploaded to the PUBLISHER’S YouTube Channel.  

(m) “Authorized Artwork” means any artwork relating to AUTHOR’S CONTENT that AUTHOR provides to PUBLISHER. All such artwork will be deemed to have been properly cleared and/or licensed by AUTHOR for all purposes, unless AUTHOR provides PUBLISHER with written notice to the contrary.

(n) “Authorized Territory” means worldwide.

(o) “Copyright Management Information” as defined by Section 1202(c) of the Digital Millennium Copyright Act (“DMCA”) means, in pertinent part, the title and other information identifying the work, including the information set forth on a notice of copyright, the name of, and other identifying information about, the author of a work, the name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright , terms and conditions for use of the work, identifying numbers or symbols referring to such information or links to such information, such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.

(p) “Digital Text Product” means a copy or copies of AUTHOR’S WORK in digital and electronic form.

(q) “Digital Text Product Net Proceeds” means the amount of proceeds received by PUBLISHER from the sale of AUTHOR’S Digital Text Product from Licensees, after deduction of each Licensee’s trade discount, before bank/credit card charges and megabyte charges for downloads.

(r) “e-Publishing Services means those services provided by PUBLISHER in the form of electronic books (“e-books”) that are transmitted digitally for the sale, distribution or licensing of AUTHOR’S CONTENT and other contents online through the PUBLISHER’S Website, PUBLISHER’S Imprint Websites, or through websites operated by or on behalf of Licensees.

(s) “Licensee(s)” means any third party online bookstore such as Amazon® (Kindle), Apple Books Store®, Barnes & Noble® (NOOK), Kobobooks.com, and other Licensees that PUBLISHER may authorize to carry out the marketing, distribution and sale or other use of AUTHOR’S WORK pursuant to the terms of this Agreement.

(t) “On-Sale Date” shall mean that date AUTHOR’S Digital Text Product or Print Product is first available for sale through any Licensee, PUBLISHER, or distributor.

(u) “Print Product(s)” means AUTHOR’S WORK produced from Print Publishing Services.

(v) “Print Publishing Services” means those services offered by PUBLISHER to print AUTHOR’S CONTENT and convert to a Print Product, to distribute through Publisher’s Website, Publisher’s Imprint Website, AUTHOR’S PROFILE PAGE, through websites and distribution services operated by or behalf of Licensees or other third parties, to list books printed from AUTHOR’S WORK with Bowker®, and a listing of AUTHOR’S WORK in the Ingram Content Group database.

(w) “PUBLISHER Imprint Website means a website that is owned by PUBLISHER, but publishes under a separate domain name.

(x) “PUBLISHER Discount for Digital Text Products” means PUBLISHER’S fifty (50%) percent share of Digital Text Product Net Proceeds.

(y) “PUBLISHER Discount for Print Products” means PUBLISHER’S ten (10%) percent royalty based on the Retail Price of Printed Products produced for AUTHOR from Print Publishing Services.

(z) “Publishing Services” means the e-Publishing Services and Print Publishing Services provided by PUBLISHER, inclusive and optional for Digital Text Products and Print Products.

(aa) “PUBLISHER Website” means www.midtownpublishing.com

(bb) “PUBLISHER Widget” means a (i) software application (available at PUBLISHER’S sole discretion) on PUBLISHER’S Website, PUBLISHER’S Imprint Websites, that AUTHOR or someone authorized to act on AUTHOR’S behalf may embed on third-party websites, (ii) link, code, script or any other software or instruction that AUTHOR or someone authorized to act on AUTHOR’S behalf may embed or place on a third-party website, including, but not limited to, social media websites such as Facebook®, that permit a user of such third-party website to access content hosted and/or streamed from servers owned or controlled by or on behalf of PUBLISHER, including AUTHOR’S WORK, or (iii) standalone software available for use on mobile devices, smartphones, such as iPhone® and Android® phones, tablet computers ,such as iPad®), set-top boxes, and other hardware now known or hereafter developed (collectively, “Hardware”), that facilitates or enables the public performance, communication to the public or other transmission of AUTHOR’S WORK via the Internet or any other transmission medium through such third-party websites or on or through any Hardware. PUBLISHER’S Widget may provide access to all of AUTHOR’S WORK or such portions of AUTHOR’S WORK that AUTHOR wishes to be available through third-party websites. PUBLISHER may choose such third party websites as it deems most beneficial for transmission of AUTHOR’S WORK, in PUBLISHER’S sole discretion.

(cc) “Retail Price of Printed Book” shall mean the retail price of AUTHOR’S Print Product as contained in the Bookland EAN Barcode affixed to AUTHOR’S Print Product.

(dd) “Soft Proof” means a pre-press digital galley utilizing downloads or online preview technology.

2. AUTHORIZATION: E-BOOK AND PRINT PUBLISHING

a. For e-Book and Print Publishing Services [as applicable]

Subject to AUTHOR’S DERIVATIVE RIGHTS that are not otherwise licensed hereunder, AUTHOR hereby appoints PUBLISHER as AUTHOR’S authorized representative for the sale and other distribution of AUTHOR’S WORK during the term hereof, on an exclusive basis throughout the world to conduct the following activities:

(a) Reproduce, format, and convert AUTHOR’S CONTENT into Digital Text Products and Print Products (collectively, AUTHOR’S WORK);

(b) Distribute and make available, for promotional purposes and without remuneration to AUTHOR, portions of AUTHOR’S WORK (“Samples”) in any form of media, including but not limited to Digital Text Products, Print Products, book trailers, and via PUBLISHER’S Widget, AUTHOR or any person authorized by AUTHOR may place on any website, to promote the license, sale and distribution of AUTHOR’S WORK;

(c) Promote, sell, license, distribute, and deliver AUTHOR’S WORK and associated metadata to purchasers and resellers who may use AUTHOR’S WORK in accordance with usage rules approved by PUBLISHER;

(d) Use and authorize others to license the use of and sale of AUTHOR’S WORK in connection with all manner of e-Book and audio book services, such as, but not limited to, sales or licenses of AUTHOR’S WORK as digital files, audio downloads and streams (including, without limitation, permanent downloads, conditional downloads, and streams to mobile devices);

(e) Authorize PUBLISHER’S Licensees, including, but not limited to, Amazon®, Apple Books Store®, Barnes & Noble®, Kobo and such other online e-publishers as are made available from time to time, AUTHOR’S WORK in all territories in which Licensees deliver, distribute, or sell digital literature including audio books or electronic books.

(f) Use so-called “kiosks” to distribute, market, and promote AUTHOR’S WORK, including, without limitation, by allowing a copy of AUTHOR’S WORK to be transferred to personal devices;

(g) Use and authorize others to make non-permanent copies of AUTHOR’S WORK to be distributed as so-called “conditional” downloads, whether tethered to a device, time-limited, use-limited or otherwise;

(h) Make available and authorize others to make available non-permanent copies of AUTHOR’S WORK via a PUBLISHER Widget, and within physical brick-and-mortar stores owned or operated by its Licensees, or independent bookstores;

(i) Allow and authorize others to allow limited sharing of AUTHOR’S WORK between existing and potential customers for promotional purposes;

(j) Use and distribute Copyright Management Information as embodied in AUTHOR’S WORK;

(k) Display and electronically fulfill and deliver Authorized Artwork used in connection with AUTHOR’S WORK for personal use, solely in conjunction with AUTHOR’S WORK;

(l) Use AUTHOR’S CONTENT, Authorized Artwork, and metadata as may be reasonably necessary or desirable for PUBLISHER to exercise PUBLISHER’S rights under this Agreement;

(m) Authorize Licensees to remove or modify the cover artwork, metadata and product description AUTHOR provides for AUTHOR’S WORK for any reason without notification.

(n) Make necessary changes to this Agreement to comply with Licensees’ rules and regulations not otherwise set forth herein; and

(o) Utilize portions of AUTHOR’S CONTENT for the production and distribution of book trailers, or other promotional activities.

(p) Authorize PUBLISHER’S e-Book Aggregators or Licensees to perform any one or more of the activities specified herein.

b. Author & Title Information

During the term of this Agreement, PUBLISHER may post, or cause to be posted pertinent information about AUTHOR and AUTHOR’S WORK on PUBLISHER’S Website, PUBLISHER’S Imprint Websites, AUTHOR’S PROFILE PAGE, and Licensee websites. Such information may include the e-book and print cover of AUTHOR’S WORK, AUTHOR’S name and picture, description of AUTHOR’S WORK and other related information

3. TERM OF AGREEMENT; TERMINATION RIGHTS; UPDATES

Immediately next following the initial term (“Initial Term”) of this Agreement, and subject to termination rights by both parties during the Initial Term, either party may terminate in accordance with the terms and conditions herein.

The “Initial Term” commences upon the Effective Date of this Agreement and continues for one (1) year next following the On-Sale Date. The renewal term (“Renewal Term”) commences upon the anniversary of the On Sale Date each year. Upon renewal of this Agreement, next following the expiration of the Initial Term or any subsequent Renewal Term, AUTHOR acknowledges that the Agreement may have been modified or otherwise updated (“Content Update”). To the extent there is a Content Update, AUTHOR agrees that with the commencement of a Renewal Term AUTHOR shall be deemed to have accepted the Content Update at the time of renewal.

a. Termination by Author

Within three (3) business days next following the Effective Date, or prior to that date when AUTHOR uploads AUTHOR’S manuscript via AUTHOR’S Authorlog™ Account, whichever shall last occur (“Early Commencement Period”), AUTHOR may terminate this Agreement for any reason (“Without Cause Termination”) in which event neither party shall have any further obligations hereunder.  Thereafter, AUTHOR may terminate “For Cause” as defined in subparagraphs i, ii, and iii below, immediately following notice to PUBLISHER (“AUTHOR’S Notice of Termination For Cause”) via an e-mail to [email protected]. “For Cause” shall include the following:

  1. PUBLISHER has materially breached its obligation to provide Publishing Services in a timely manner in accordance with estimates contained in this Agreement, subject, however, to changes in content sought by AUTHOR, additional marketing projects pursued by PUBLISHER on behalf of AUTHOR, delays by PUBLISHER’S printer, or other third party retained by PUBLISHER or similar activities that would delay the completion of AUTHOR’S WORK;
  2. PUBLISHER has failed to provide Publishing Services consistent with industry standards for similar Digital Text Products or Print Products;
  3. PUBLISHER has ceased business operations.

In addition to the foregoing “For Cause” termination rights, AUTHOR may elect to terminate this Agreement for any reason (“Without Cause”) upon the expiration of the Initial Term or any Renewal Term by delivering a notice to PUBLISHER, via AUTHOR’S Authorlog™ Account a notice of termination (“Notice of Termination Without Cause”) within ten days of the anniversary of the Initial Term or any Renewal Term (“The Anniversary Without Cause Option”). Upon such termination by AUTHOR, AUTHOR acknowledges and agrees that any and all ISBN, LCCN and Bar Codes affixed to AUTHOR’S Digital Text Product or AUTHOR’S Print Product by PUBLISHER, must be replaced by AUTHOR in order to offer AUTHOR’S CONTENT for sale by AUTHOR, or by others retained by AUTHOR.

In the event AUTHOR delivers a Without Cause Termination to PUBLISHER beyond the Early Commencement Period and not within the period of time of The Anniversary Without Cause Option, AUTHOR agrees to reimburse PUBLISHER for out-of-pocket expenses occasioned by PUBLISHER up to the date of AUTHOR’S Without Cause Termination. In the event PUBLISHER desires to make a claim against AUTHOR arising out of AUTHOR’S Without Cause Termination, PUBLISHER must provide AUTHOR with specific categories of expenditures that are reasonably necessary to assist in AUTHOR’S confirmation of such expenses.

b. Termination by Publisher

PUBLISHER may terminate this Agreement and publication of AUTHOR’S WORK (“For Cause”) as defined in subparagraphs i, ii, and iii below, immediately following notice to AUTHOR (“PUBLISHER’S Notice of Termination For Cause”) via AUTHOR’s Authorlog™ Account, (or AUTHOR’S e-mail address or mailing address, if AUTHOR or PUBLISHER has terminated AUTHOR’S Authorlog™ Account). “For Cause” shall include the following:

i. AUTHOR’S CONTENT may subject PUBLISHER to the risk of litigation or other adverse commercial consequences (“Potential Damage Claims”); or

ii. AUTHOR’S CONTENT violates the common law or statutory copyright laws, the right of privacy of any person, contains libelous or obscene material, promotes hate, violence, or illegal activities (“Offensive Content”); or

iii. AUTHOR’S CONTENT violates any provision in PUBLISHER’S Terms of Use, Privacy Policy, Authorlog™ Account, AuthorlogChat™ Guidelines, or AuthorWebChat™ provisions.

iv. AUTHOR is in default of any financial obligation to PUBLISHER and has failed to cure such default within ten business days next following notification by PUBLISHER to AUTHOR of such default.

In addition to the foregoing “For Cause” termination rights, PUBLISHER may elect to terminate this Agreement for any reason (“Without Cause”) upon the expiration of the Initial Term or any Renewal Term by delivering a notice to AUTHOR, via AUTHOR’S Authorlog™ Account a notice of termination (“Notice of Termination Without Cause”) within ten days of the anniversary of the Initial Term or any Renewal Term . Upon such termination by PUBLISHER, AUTHOR acknowledges and agrees that any and all ISBN, LCCN and Bar Codes affixed to AUTHOR’S Digital Text Product or AUTHOR’S Print Product by PUBLISHER, must be replaced by AUTHOR in order to offer AUTHOR’S CONTENT for sale by AUTHOR, or by others retained by AUTHOR.

Upon Termination by either party, PUBLISHER may, at PUBLISHER’S sole discretion, revoke or suspend AUTHOR’S Authorlog™ Account.

c.  Return of AUTHOR’S INTELLECTUAL PROPERTY

So long as AUTHOR is not in default of any obligations to PUBLISHER (including financial arrangements for payment in advance for the estimated cost of return of AUTHOR’S Print Products), PUBLISHER shall, within ten (10) business days of termination of this Agreement by either party, return AUTHOR’S INTELLECTUAL PROPERTY in electronic format (Digital Text Product) via AUTHOR’S Authorlog™ Account. Any of AUTHOR’S INTELLECTUAL PROPERTY in Print Product shall be shipped to AUTHOR at AUTHOR’S  cost and expense.

4.     PUBLISHING SERVICES AVAILABLE FROM PUBLISHER

PUBLISHER offers the Publishing Services set forth below. PUBLISHER may amend or discontinue Publishing Services, or any portion thereof, at any time.  Notification of any amendment or discontinuance of Publishing Services shall be posted from PUBLISHER’S portal in Authorlog™.  The amendment or discontinuance of Publishing Services, or any portion thereof, shall not affect the rights of AUTHOR or PUBLISHER that have vested prior to any such amendment or discontinuance.

The following Publishing Services are available as of the Effective Date of this Agreement:

Digital Text Products

The e-book Publishing package includes the following:

(1) Conversion of AUTHOR’S CONTENT to Mobi/Kindle format;

(2) Conversion of AUTHOR’S CONTENT to ePub format.

(3) Custom e-Cover design.

(4) Submission to the major e-bookstores.

(5) ISBN.

(6) Listing in PUBLISHER’S Website e-bookstore or PUBLISHER Imprint Website e-bookstore.

(7) Submission to Amazon’s “Search Inside the Book™” Program.

(8) Author Profile Page on PUBLISHER.

(9) Amazon Author Page .

(10) AuthorWebChat™ online video chat with author that is posted on PUBLISHER’S YouTube    Channel, AUTHOR’S AuthorProfilePage, Amazon Author Page, with links to social media.

Together with the following optional services:

(12) Eligible for advanced editing.

Print Product [Trade-Softcover]

The Print Product offered by PUBLISHER includes:                                                             

(1) Additional ISBN & BAR CODE for trade paperback.

(2) Obtaining of Library of Congress Control Number (LCCN) from the Library of Congress, Washington, D.C.

(3) Delivery of AUTHOR’S Print Product to Library of Congress, Washington, D.C.

(4) Interior & cover soft proofs.

(5)  Listing in PUBLISHER Website e-bookstore or PUBLISHER Imprint Website e-bookstore.

(6)  Submission to Amazon’s “Search Inside the Book™” program.

(7) Interior and cover soft proofs.

(8) Registration and listing with Bowker’s Books in Print.

(9) Ten (10) Trade Paperback books in Trim sizes not exceeding 6x 9.  

(10) Free Shipping for initial Print Product order. Reorders at then-current pricing.

(11) Wholesale pricing on all future print orders [ten (10) books minimum reorder].

(12) MidTown Publishing AuthorProfilePage

(13) Amazon Author Page

(14) AuthorWebChat™ online video chat with author that is posted on PUBLISHER’S YouTube Channel, AUTHOR’S Midtown Author Profile Page, AUTHOR’S and PUBLISHER’S Facebook pages, and other social media.

Together with the following optional services:

(15) Eligible for advanced editing.

 5. PROOFREADING FOR PUBLICATION

PUBLISHER’S editors will proofread AUTHOR’S CONTENT to identify typographical, linguistic, spelling, coding or positional errors and omissions.

6. MANUSCRIPT GUIDELINES

AUTHOR acknowledges receipt, review and agreement to be in compliance with PUBLISHER’S Manuscript Guidelines. Without limiting the foregoing, AUTHOR acknowledges that AUTHOR’S CONTENT must be delivered to PUBLISHER in MSWord (.doc, .docx format) only.

7. CONVERSION OF MANUSCRIPT TO MOBI/KINDLE FORMAT.

PUBLISHER converts AUTHOR’S CONTENT from MSWord to Mobi/Kindle format, and ePub format.

The Mobipocket technology is utilized in the Kindle® eBook reader, with a proprietary format known as AZW, with optional Digital Rights Management (DRM)* embedded in the software. Because the Kindle® eBooks are delivered over its wireless system known as the Whispernet, the user does not see the AZW files during the downloading process.

*DRM technologies attempt to control use of digital media by preventing access, copying or conversion to other formats by end users.

PUBLISHER represents that Mobi/Kindle conversion services are generally completed in ten (10) working days next following receipt and approval of PUBLISHER’S file containing AUTHOR’S CONTENT.

8. CONVERSION OF MANUSCRIPT TO EPUB FORMAT.

ePub is an acronym for electronic publishing. ePub became an official standard of the International Digital Publishing Forum (IDPF) in September 2007. ePub is the software that is used by Barnes & Noble NOOK ™, Kobobooks.com,, Apple Books Store, for users of  iPad, iPhone, and iPod Touch and smartphones that use Android technologies.

Delivery time for ePub files from submission of PUBLISHER’S approved file that contains AUTHOR’S CONTENT is usually within ten (10) business days.

 11. DELIVERY OF E-BOOK TO ONLINE E-BOOK RETAILERS

Once AUTHOR’S CONTENT is formatted for Mobi/Kindle and ePub, AUTHOR’S WORK will be uploaded to major e-book retailers, including Amazon’s Kindle, NOOK by Barnes & Noble, Apple Books Store, Google Play Books, Kobo.com, and such other e-book retailers as may be added from time-to-time. The e-book formats will be able to be read on iPad, iPhone, and iPod Touch and other reading devices, including smartphones, utilizing the Android technology. Publication dates for the e-book retailers vary.

12. E-COVER DESIGN.

PUBLISHER will produce for AUTHOR a custom e-cover design. Usually within ten (10) business days from AUTHOR’S completion of PUBLISHER’S Design Questionnaire and uploading of images (if any), a Custom E-cover Design will be available for AUTHOR’S REVIEW in AUTHOR’S Authorlog™ Account. PUBLISHER’S designers will make up to two revisions of AUTHOR’S e-cover design. Although AUTHOR will be able to print the e-cover, because e-cover graphics are utilized solely for web applications, they are at 72dpi, and will not have the same clarity as book covers designed for Print Products.

13. ISBN

 PUBLISHER furnishes AUTHOR with an ISBN number that is affixed to AUTHOR’S WORK in the form of a Digital Text Product. ISBN is an acronym for International Standard Book Number. It is a thirteen digit number that uniquely identifies books and book-like products, including e-books. The ISBN number is unique to the e-book. For print, an additional ISBN number is required. ISBNs do not expire, and there are no renewal fees; however, AUTHOR cannot reuse the ISBN furnished by PUBLISHER once it is assigned to AUTHOR’S WORK.

14. CUSTOM BOOK COVER DESIGN [TRADE PAPERBACK]

PUBLISHER will produce for AUTHOR a custom book cover design. Usually within ten (10) business days from AUTHOR’S completion of PUBLISHER’S Design Questionnaire and uploading of images (if any), a book cover design will be available for AUTHOR’S review in AUTHOR’S Authorlog™ Account. The book cover design includes full graphic design front and spine, back cover design, up to six hundred (600) words of copy, and an image for AUTHOR photo.

 PUBLISHER’S designers will make up to two revisions of AUTHOR’S book cover design. Each round of revisions may take up to ten (10) business days.

PUBLISHER customarily provides Print Products for trade paperbacks in the 5.5” x 8.5” trim, black and white interior, perfect bound, crème, matte paper, or white paper, gloss or matte laminate for book covers. Other trim sizes including sizes 5”x 7”, 5” x 8”, 5.250” x 8.00”, and 6” x 9” are available at PUBLISHER’S sole option.

The cover designer will also lay out the rest of the cover, including the spine and the back cover. Content and any photos of AUTHOR for the back cover will be provided by AUTHOR. AUTHOR acknowledges that the final layout of the full book cover cannot be completed until the interior book layout is completed and AUTHOR provides the content and photos for the back cover via AUTHOR’S Authorlog™ Account. AUTHOR further acknowledges that one round of minor changes (e.g., correction of typos, modification of font size) to the back cover is included. If AUTHOR wishes to make more extensive changes to the back cover such as changing images, colors, editorial changes to the text, AUTHOR acknowledges that, at PUBLISHER’S discretion, additional fees may be charged.  All photos must be 300dpi or greater for Print Products.

AUTHOR warrants that AUTHOR has the unequivocal right, title, and interest in any photos or artwork to be used on the cover photos/artwork on AUTHOR’S book cover.

PUBLISHER will use its best efforts to create a professional book cover based on AUTHOR’s answers to PUBLISHER’S Design Questionnaire. If AUTHOR does not approve the cover concept and/or any revisions of the chosen cover concept created by PUBLISHER, AUTHOR, at AUTHOR’S expense, may hire AUTHOR’S own cover designer. AUTHOR acknowledges that PUBLISHER can make no guarantees that AUTHOR will approve any of the cover concepts presented.

After AUTHOR approves the final cover design, and/or after the second round of revisions of the chosen cover concept, any future changes to the cover design before AUTHOR approves the Soft Proof of AUTHOR’S WORK will cost $50.00 per hour, with a minimum charge of one hour. Such changes can take five to ten (5-10) business days.

15.INTERIOR BOOK DESIGN AND LAYOUT [TRADE PAPERBACK]

AUTHOR will be able to download from AUTHOR’S Authorlog™Account a soft proof of AUTHOR’S CONTENT in the PDF Print Format for review in the Adobe Reader.

AUTHOR acknowledges that AUTHOR’S WORK’S editing [including proofreading and optional edits chosen by AUTHOR] must be completed prior to the commencement of AUTHOR’S WORK layout.

One round of minor layout revisions (“Minor Layout Revisions”) is included. Minor Layout Revisions include design changes (headers, breaks, typographical errors, punctuation, spelling, and/or extra spaces between characters or words that were not in the original submitted manuscript).

AUTHOR acknowledges that it is AUTHOR’S responsibility to carefully check all interior pages and cover elements for errors or omissions.

AUTHOR is responsible for providing comments to PUBLISHER for proposed Minor Layout Revisions through AUTHOR’S Authorlog™Account within a reasonable time next following PUBLISHER’S download of AUTHOR’S  soft proof.  Should PUBLISHER require an expedited review by AUTHOR, PUBLISHER will provide details respecting same.

Once requested changes are made  to PUBLISHER, based on PUBLISHER’S analysis of the soft proof, including comments from AUTHOR, PUBLISHER will upload the proof to  PUBLISHER’S printer.  At that juncture, the Print Product is locked in a galley proof, and not subject to further review, except by PUBLISHER.

16. ISBN, LCCN, and BAR CODE [TRADE PAPERBACK]

PUBLISHER provides an ISBN and BARCODE and affixes both on the back cover of AUTHOR’S WORK. The ISBN identifies the name and contact information of PUBLISHER. Should AUTHOR or PUBLISHER terminate this Agreement, AUTHOR must remove PUBLISHER’S ISBN and BAR CODE from any future copies of AUTHOR’S WORK that AUTHOR publishes.

PUBLISHER, through the Preassigned Control Number (PCN) will obtain a Library of Congress Control Number (LCCN) sometimes referred to as Library of Congress Card Number for AUTHOR’S WORK. Once the LCCN is assigned, PUBLISHER prints the number on the copyright page of the softcover or hardcover book.

PUBLISHER shall provide one (1) copy of the published book to the Library of Congress to validate AUTHOR’S LCCN.

17. INITIAL INVENTORY AND REORDERS [TRADE PAPERBACK]

(a) Initial Inventory Order1

The AUTHOR receives ten (10) Trade Paperback books as the Initial Inventory Order for AUTHOR’S personal use.

The Initial Inventory Order is sent from the PUBLISHER’S printer directly to AUTHOR (or AUTHOR’s designee), to PUBLISHERs fulfillment warehouse (if PUBLISHER is providing fulfillment or other services for AUTHOR), or to a distributor chosen by AUTHOR.

AUTHOR acknowledges that it will take approximately ten working days from the time that the Soft Proofs are approved by AUTHOR to be printed, packed, and shipped to AUTHOR or AUTHOR’s designee.

(b) Reorders1

Reorders are all orders for copies of AUTHOR’S WORK placed by AUTHOR after the Initial Inventory Order. A minimum reorder of ten (10) books is required. Reorders are processed through AUTHOR’S “My Projects” portal in the Authorlog™ Account.

For Reorders, AUTHOR acknowledges that PUBLISHER will charge AUTHOR’S Wholesale Cost for Print Products, printer’s shipping costs, and PUBLISHER’S Discount for Print Products.

AUTHOR acknowledges that all reorders will take approximately ten to twelve (10-12) business days to be printed, packed, and shipped.

1Notwithstanding any delivery dates set forth above, PUBLISHER is not responsible for printer delays in the delivery of AUTHOR’S WORK with respect to the Initial Inventory Order or any reorder.

18. LISTING & DELIVERY OF AUTHOR’S PRINTED BOOK.

            a. Listing of Print Products for Sale at Amazon.com; Optional Expanded Distribution.

Should AUTHOR elect to participate in Amazon’s Expanded Distribution Program that lists AUTHOR’S WORK to retailers, libraries, schools and distribution partners worldwide, the Amazon.com Trade Discount will  increase from 30% to 40%.  AUTHOR acknowledges that PUBLISHER has no control over how long it takes  for the initial listing of AUTHOR’S WORK to appear in the Expanded Distribution Program database, or how long it takes to process any requested changes in metadata after AUTHOR’S WORK  has been listed.

            b. Listing of Author’s Print Product in Bowker’s Books In Print

PUBLISHER shall list AUTHOR’s Print Product in Bowker’s Books In Print upon publication.

            c. Listing of Author’s Print Product with Library of Congress

PUBLISHER shall list AUTHOR’S Print Product with the Library of Congress, including the acquisition of a Library of Congress Control Number (LCCN) for AUTHOR’s Print Product.

           d. Delivery of Author’s Print Product to Library of Congress

PUBLISHER shall deliver Author’s Print Product to the Library of Congress following publication.

19. PROOFREAD EDIT/OTHER EDITING SERVICES

Subject to the limitations set forth in Paragraph five (5), a proofread edit is included in Publication Services. Copy Edits, Line Edits, or Development Edits are available, but are not included in Publication Services, unless PUBLISHER, in its sole option, elects to offer such service or services. AUTHOR should consult “Advanced Editing” for more details.

20. NO REPRESENTATIONS AND WARRANTIES BY PUBLISHER WITH RESPECT TO SALES AND DISTRIBUTIONS:

PUBLISHER makes no guarantees regarding the minimum number of unit sales of AUTHOR’S WORK. In addition, PUBLISHER cannot guarantee that Licensees, retailers, or distributors will perform under any agreement they enter into with PUBLISHER for the sale, distribution or licensed use of AUTHOR’S WORK, including the payment of royalties they owe PUBLISHER for the distribution of AUTHOR’S WORK. If a Licensee, retailer or distributor refuses to pay PUBLISHER for the use of AUTHOR’S WORK, AUTHOR agrees to assume responsibility for collecting any payments that may be due from such non-compliant Licensee, retailer, or distributor for any sale, distribution or licensed use of AUTHOR’S WORK if such third party fails or refuses to pay such amounts to PUBLISHER upon PUBLISHER’S request.

21. PAYMENTS TO AUTHORS FOR DIGITAL TEXT PRODUCTS SOLD BY LICENSEES

AUTHOR’S Royalty Share of Digital Text Product Net Proceeds from AUTHOR’S WORK is fifty (50) percent.

PUBLISHER provides monthly sales reports to AUTHOR in AUTHOR’S Authorlog™ Account when there is activity in AUTHOR’S account. AUTHOR may access AUTHOR’S Share of Digital Text Product Net Proceeds by clicking on the “My Payments” icon in AUTHOR’S Authorlog™ Account.

AUTHOR acknowledges that AUTHOR must complete and return IRS Form W-9 provided by PUBLISHER, in order for PUBLISHER may remit payments for Net Royalties to AUTHOR.

AUTHOR acknowledges that AUTHOR’S Royalty Share of Digital Text Product Net Proceeds must meet or exceed twenty-five ($25.00) dollars (the “Net Proceeds Minimum Disbursement”) before PUBLISHER remits payment. If AUTHOR’S Royalty Share of Digital Text Product Net Proceeds are less than the Net Proceeds Minimum Disbursement in a given month, earnings will accrue until AUTHOR’S earnings meet or exceed the Net Proceeds Minimum Disbursement. Provided, however, in the event AUTHOR’S Royalty Share of Digital Text Product Net Proceeds in a twelve-month period do not meet or exceed the Net Proceeds Minimum Disbursement, AUTHOR will be paid the accumulated Digital Text Product Net Proceeds at the end of the calendar year in which the Net Proceeds are earned.

It takes approximately forty-five (45) to one-hundred twenty (120) days for proceeds from sales of AUTHOR’S WORK in Licensee’s online e-bookstores to be disbursed to PUBLISHER. This varies by e-bookstore, and depends on how quickly stores report their sales to PUBLISHER. When received, sales reports from online e-bookstores are immediately posted to AUTHOR’S Authorlog™ Account in the “My Royalties” portal.

On the first day of that month next following receipt of Digital Text Product Net Proceeds from any third party that meet or exceed the Net Proceeds Minimum Disbursement, PUBLISHER will disburse Digital Text Product Net Proceeds to AUTHOR. Payments are disbursed with ACH or Zelle deposit (for AUTHORS with US bank accounts), or through PayPal.

22. AUTHOR REVENUES AND SHIPPING COSTS FOR PRINTED BOOKS

AUTHOR purchases AUTHOR’S print products directly from PUBLISHER at AUTHOR’S Wholesale Cost For Print Products, together with shipping costs, and PUBLISHER’S Discount for Print Products.

All revenues realized by AUTHOR for Print Products are derived from retail sales made through AUTHOR’S distribution and sale of AUTHOR’S printed books, unless revenues are realized from PUBLISHER’S e-bookstore(s),  at www.amazon.com1, or similar online booksellers.  AUTHOR may offer AUTHOR’S Print Products at venues chosen by AUTHOR, including, but not limited to, AUTHOR’S Profile Page, AUTHOR’S website, writer events, book fairs, personal appearances, books placed in independent bookstores, and such other locations as AUTHOR may choose.

1Additional distribution through Amazon’s Expanded Distribution is optional and  is handled on an individual basis. If AUTHOR elects to utilize Amazon’s Expanded Distribution Services, AUTHOR’S Variable Royalty on Print Products will be subject to additional Discounts charged by Amazon.com. Details of the Amazon Fulfillment Services program are available in Authorlog™.

23. “OUR PROMISE”.

PUBLISHER’S “OUR PROMISE” Program states that the AUTHOR’S WORK as a Digital Text Product and a Print Product will have the same professional appearance as similar products produced by large traditional publishers . PUBLISHER represents to AUTHOR that AUTHOR’S WORK as viewed by the “reasonable man standard” will be comparable with such traditional publishing products. With respect to Print Products, comparisons are restricted to Print Products produced by traditional publishers using similar formatting techniques, printing methods, basis weight in paper, with specific reference to generally used standard paper in the printing trade for trade paperback and similar works, together with similar cover stock. AUTHOR acknowledges that PUBLISHER’S representations and warranties are strictly with respect to physical appearance and not AUTHOR’S CONTENT.

24. AUTHOR’S WARRANTIES AND INDEMNITIES

(a)        AUTHOR has the full right, power, and authority to act on behalf of any and all owners of any right, title or interest in and to AUTHOR’S CONTENT, Authorized Artwork, and metadata.

(b)        AUTHOR owns or controls the necessary rights in order to make the grant of rights, licenses and permissions herein, that AUTHOR have permission to use the name and likeness of each identifiable individual person whose name or likeness is contained or used within AUTHOR’S CONTENT, and to use such individual’s identifying or personal information (to the extent such information is used or contained in AUTHOR’S CONTENT) as contemplated by this Agreement. Furthermore, AUTHOR represents that the exercise of such rights, licenses and permissions by PUBLISHER, PUBLISHER’S e-Book Aggregators, and Licensees shall not violate or infringe the rights of any third party.

(c)        AUTHOR’S CONTENT does not plagiarize or pirate any other work or infringe upon any copyright, trademark or other proprietary right.

(d)        AUTHOR’S CONTENT does not contain SEO keyword “spam,” either in AUTHOR’S manuscript or AUTHOR’S metadata tags.

(e)        AUTHOR’S CONTENT does not contain multiple hyperlinks to advertisements or affiliate marketing pages.

(f)         AUTHOR’S CONTENT does not contain any advertisements of content that is primarily intended to advertise or promote products of services.

(g)        AUTHOR’S CONTENT does not violate any right of privacy that is libelous or violate any personal right or other right of any kind of any person or entity.

(h)        AUTHOR’S CONTENT does not violate state and federal laws or advocate illegal activities.

(i)         AUTHOR’S CONTENT does not advocate hateful, discriminatory or racist views or actions toward others.

(j)         Any and all instruction, material, or advice contained in AUTHOR’S CONTENT is not likely to result in injury and AUTHOR’S CONTENT includes appropriate warning and safety precautions concerning any particular hazards that may be involved in the use of any such instruction, material or advice.

(k)        AUTHOR’S CONTENT is not a public domain work (unless AUTHOR is the true author) and is not sourced or copied, either in part or in entirety, from commercial services, articles, or information sources which have been licensed to others.

25. INDEMNIFICATIONS BY AUTHOR

(a) Indemnification. AUTHOR agrees to indemnify, save, and hold PUBLISHER harmless from any and all damages, claims, liabilities, costs, losses and expenses including, but not limited to, legal costs and attorneys’ fees, (collectively, “Claims”) arising out of or connected with any claim, demand, or action which is inconsistent with any of the warranties, representations, covenants or agreements made by AUTHOR in this Agreement, including, but not limited to, AUTHOR’S representations and warranties regarding copyrights or any other rights in and to any other forms of intellectual property. AUTHOR will reimburse PUBLISHER, on demand, for any payment made by PUBLISHER at any time with respect to any damage, liability, cost, loss or expense arising out of Claims to which the foregoing indemnity applies. Pending the determination of Claims, PUBLISHER may, at PUBLISHER’S election, withhold payment of any royalties otherwise payable to AUTHOR hereunder in an amount which does not exceed AUTHOR’S potential liability to PUBLISHER pursuant to the provisions of this paragraph.

(b) Indemnification Request. If PUBLISHER makes an indemnification request to AUTHOR under this Section, PUBLISHER may permit AUTHOR to control the defense, disposition or settlement of the matter at AUTHOR’S expense, provided that AUTHOR shall not, without PUBLISHER’S prior written consent, enter into any settlement or agree to any disposition that requires any admission of liability by PUBLISHER or imposes any conditions or obligations on PUBLISHER other than the payment of monies that are readily measurable for purposes of determining AUTHOR’S monetary indemnification or reimbursement obligations to PUBLISHER. If PUBLISHER, in PUBLISHER’S reasonable and good faith judgment, concludes that AUTHOR is not capable of defending AUTHOR’S or PUBLISHER’S interests against any Claims, then PUBLISHER shall have the option to control the defense in any matter or litigation through counsel of PUBLISHER’S choosing to defend against any such Claims, in which event AUTHOR shall be responsible to reimburse PUBLISHER for any and all expenses associated with retention of counsel in defense of such Claims. These warranties and indemnities will survive the termination of this Agreement.

26. PERMISSION FOR COPYRIGHTED MATERIAL

If AUTHOR incorporates in AUTHOR’S WORK any copyrighted material, AUTHOR will procure, at AUTHOR’S expense, written permission to reprint the material. AUTHOR agrees to retain all such written permissions. AUTHOR agrees to deliver all such written permissions to PUBLISHER at PUBLISHER’S request.

27. DIGITAL MILLENNIUM COPYRIGHT ACT

If AUTHOR contends that any material contained in the PUBLISHER Website or a PUBLISHER Imprint Website infringes AUTHOR’S copyright, AUTHOR may notify PUBLISHER of AUTHOR’S copyright infringement claim in accordance with the following procedure.

PUBLISHER will process notices of alleged infringement that PUBLISHER receives and will take appropriate action as required by the Digital Millennium Copyright Act (DMCA) and other applicable intellectual property laws. The DMCA requires that notifications of claimed copyright infringement should be sent to the PUBLISHER’S Designated Agent who is:

Michael Zealy, Publisher

Midtown Publishing, Inc.

Email: [email protected]

To be effective, the notification must be in writing and contain the following information (DMCA, 17 U.S.C. §512(c)(3):

  1. A physical or electronic signature of AUTHOR as owner or as a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PUBLISHER to locate the material;
  4. AUTHOR represents that the Contact Information including in AUTHOR’S enrollment in Authorlog™ Account  is current. AUTHOR further represents that in the event AUTHOR’S Authorlog™ Account has been closed, that Contact Information contained therein prior to closure, is accurate for purposes of contacting AUTHOR.
  5. A statement that AUTHOR has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  6. A statement, made under penalty of perjury, that the information and the notification is accurate and that AUTHOR is the owner or is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

E-mails sent to [email protected] for purposes other than communication about copyright claims may not receive an acknowledgement or response.

28.        ADDITIONAL PUBLISHING SERVICES OFFERED BY PUBLISHER

The following Publishing Services are available to AUTHOR. These services are optional, and will be offered to AUTHOR at PUBLISHER’S sole discretion.

a.    AuthorWebChat™

 PUBLISHER offers an online video chat on AuthorWebChat™ for AUTHOR participation.

Any additional services provided by PUBLISHER are governed by terms and conditions respecting such services.

29.      TERMS OF SERVICE & PRIVACY POLICY PROVISIONS INCORPORATED FOR ALL PURPOSES

PUBLISHER’S Terms of Service and Privacy Policy are fully incorporated in this Agreement as though fully set forth herein. To the extent there is a conflict between the provisions herein and the provisions therein, the terms herein shall prevail.

30.  MISCELLANEOUS PROVISIONS

a. Notices

All notices required or permitted under this Agreement (except as otherwise set forth) shall be delivered to AUTHOR’S Authorlog™ Account by PUBLISHER, and sent to PUBLISHER from AUTHOR in AUTHOR’S Authorlog™ Account. In the event AUTHOR’S Authorlog™ Account has been closed by AUTHOR or PUBLISHER, AUTHOR may e-mail notices to [email protected] and PUBLISHER may send notices to AUTHOR’S e-mail account provided by AUTHOR. In the event AUTHOR’S e-mail account is no longer available, PUBLISHER may send a written notice to AUTHOR’S mailing address as set forth in AUTHOR’S Authorlog™ Account  enrollment application.

 b. Entire Agreement

This Agreement contains the entire agreement between PUBLISHER and AUTHOR, whether oral or written, except for PUBLISHER’S Terms of Use and Privacy Policy that are incorporated herein for all purposes. This Agreement supersedes any prior written or oral agreements between PUBLISHER and AUTHOR.

c.   Severability

If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.

d.    Modification

PUBLISHER may modify this Agreement with ten (10) days’ written notice to AUTHOR in the manner for such notices as set forth herein. Any modification by PUBLISHER shall not affect AUTHOR’S CONTENT or AUTHOR’S WORK that is in process with PUBLISHER.

e.     Waiver

The failure of either PUBLISHER or AUTHOR to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

f.      Applicable Law

The validity, interpretation. construction. performance, enforcement, and remedies of or relating to this Agreement, and the rights and obligations of the parties hereunder, shall be governed by the laws of the State of New York (without regard to the conflict of laws, rules, or statutes of any jurisdiction), and every legal proceeding arising out of or in connection with this Agreement shall be brought in New York, New York, each of the undersigned parties hereby consenting to the exclusive personal and subject matter jurisdiction of said courts for this purpose.

g.    Prevailing Parties

The prevailing party in any suit brought by either party hereto to enforce the terms hereof shall he entitled to recover from the non-prevailing party all of said prevailing party’s reasonable costs, distributions, and attorneys’ fees, including all collection costs and attorneys’ fees incurred in attempting to collect any judgment obtained arising out of legal proceedings brought hereunder.

h.    Agreement deemed executed by AUTHOR when AUTHOR utilizes PUBLISHER SERVICES

This Agreement shall be deemed executed by AUTHOR when AUTHOR uploads AUTHOR’S CONTENT to PUBLISHER.

i.      Limitation of Liability; Basis of the Bargain

(i) PUBLISHER SHALL NOT BE LIABLE TO AUTHOR FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY NATURE, FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF PUBLISHER HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. PUBLISHER SHALL ALSO NOT BE LIABLE FOR ANY ROYALTIES, FEES, PAYMENTS OR DAMAGES ARISING OUT OF THE FAILURE OF ANY E-BOOK LICENSEE, RETAILER, OR DISTRIBUTOR TO PAY PUBLISHER OR AUTHOR ANY ROYALTIES THAT ARE DUE FOR ANY USE OR MISUSE OF AUTHOR’S CONTENT OR AUTHOR’S WORK, WHETHER PURSUANT TO AN EXISTING, EXPIRED OR TERMINATED AGREEMENT WITH PUBLISHER OR OTHERWISE. PUBLISHER’S TOTAL LIABILITY TO AUTHOR FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL INSTANCES BE LIMITED TO THE AMOUNT OF MONIES ACTUALLY PAID TO AUTHOR BY PUBLISHER FOR THE DISTRIBUTION OR LICENSING OF AUTHOR’S CONTENT OR AUTHOR’S WORK DURING THE SIX (6)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF AUTHOR’S CLAIM AGAINST PUBLISHER.

(ii) APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO AUTHOR. IN SUCH CASES, AUTHOR AGREES THAT BECAUSE SUCH DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN AUTHOR AND PUBLISHER, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AUTHOR AND PUBLISHER, PUBLISHER’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. AUTHOR UNDERSTANDS AND AGREES THAT PUBLISHER WOULD NOT BE ABLE TO OFFER ITS SERVICES TO AUTHOR ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS AND WOULD NOT OFFER SUCH SERVICES ABSENT A LIMITATION OF LIABILITY.

j.      Currency

All dollar amounts set forth in this Agreement and those incorporated as part of this Agreement are in U.S. Dollars.

k.     Agreement to Govern AUTHORS WORK for multiple submissions.

It is the intent of the parties that the provisions of this Agreement shall govern the rights and responsibilities of the parties with respect to any and all transactions between them with respect to publishing services.

MidTown Publishing Inc.

A New York Corporation

 

By____________________

Authorized Officer