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Contracts - Assignment Example

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Publishing contract is a standard contract and a writer, that too a writer who is making efforts to get his first work published, has little option but to sign on the dotted lines of the contract. In this world impacted by internet revolution, print and electronic media have…
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Journalism, mass media and communication Introduction Publishing contract is a standard contract and a writer, that too a writer who is making efforts to get his first work published, has little option but to sign on the dotted lines of the contract. In this world impacted by internet revolution, print and electronic media have taken tremendous stride, and their growth is like that of octopus which grows in all the directions. Normally an author is a novice about the intricacies of the art of publication. The technical and legal language of the contract is liable to be interpreted in various terms, often jeopardizing the interests of the author. Normally an author is familiar with the limited terms of publishing like paperback mass market edition, hardcover edition, and e-book kindle edition etc. But if a book hits the market and creates waves, there are many avenues for financial gains, which unless secured through the contract, the author may lose their benefit. Apart from the main right of getting royalty on the copies sold, there are many subsidiary rights.
If the book is accepted for publication by old, reputed publishing houses, the author can enjoy a sense of security about his financial interests. I have gone through the article "A Contract Primer: Subsidiary Rights" at this website: (http://www.mindyklasky.com/index.php/for-writers/a-contract-primer-subsidiary-rights/) and find that most of the interests of the author have been listed out and protected through the agreement. When a dispute unfortunately occurs, it is all about interpretation in the context of the situation whether the publisher has violated the primary or secondary rights. Then there are practical problems with the author. A Publishing House generally has resources and the legal department to fight the cases. For an individual author, it is difficult to spare money and time for the legal exercise, unless the stakes are very high and the book has become extraordinarily popular.
To sum up and in addition, from the point of view of the author, the following points need to be noted and suitable additions/modifications made in the contract to protect author’s interests:
1. Payments are made to the author at half yearly rests in most of the cases. 10% of the print value of the book is a small amount. This is the internet age. The amount payable to the author must be credited to his bank account or paid through any other payment methods like PayPal, instantly, when a copy is sold. The authors must get the payments on daily basis. It is worth noting that the booksellers ship the book when they get advance payment from the buyers through credit card.
2. The authors are at a disadvantage, and the book sellers, distributors and the publishers are in an advantageous position.
3. When the book gets any awards, 50% of the same is retained by the publishers. This is an unfair labor practice. The authors must get the full credit. The book is rewarded on its merits and creativity, and not on the basis of salesmanship of the Publisher.
4. All promotional expenses, sample copies, advertisement charges are treated as expenses by the Publisher and they are indirectly charged to the royalty on sales paid to the author. This is unfair. The Publishing House is doing business, not the author.
5. Legal expenses, should there be a dispute, should be borne by the Publisher. A panel of lawyers may be created by the Publishers for the purpose in view who will take care of the interests of the author.
6. Exclusive rights and subsidiary rights must be clearly defined and listed out. Publisher’s interest in any of the non-defined area needs to be decided through arbitration, for which the author should be a party, and the matter should not be left to the sold judgment of the Publisher.
7. The royalty of 5% on high discount sales payable to the author is too low. Due to the business maneuvers of the Publisher, the author should not suffer and the royalty on sales amount should not be less than 10% under any circumstances.
8. When a book becomes popular and millions of copies are sold does the author get more than 10% royalty on sales? The answer is in the negative. What is stated in point (7) above needs to be read in this context.
9. “(n) Free Copies. With respect to copies given away free for publicity or promotional purposes, or to induce additional sales, and with respect to copies destroyed or given or sold to the Author, no royalty will be payable.”—This clause is obnoxious. It leaves room for maneuvers by the Publisher and works to the disadvantage of the author. The Publisher may protect his interest through insurance cover as for “destroyed” copies.
10. For television and movie rights and issues related to translation in other languages, the author should be a party in the negotiating team, and any agreement should be signed with the consent of the author. On such issues the author should have the power to veto any unfair offer.
RANDOM HOUSE PUBLISHERS
AUTHOR CONTRACT
This Agreement is made as of March, 04, 2015 (the “Effective Date”) between (Your name and address Janice Carter, 2023, Burr Avenue, Bx, NY 10461) (the “Author”) and Random House, Publishers, Houston, TX 77001 (the “Publisher”).
The Author and the Publisher mutually agree to the following:
THE WORK, THE GRANT OF RIGHTS, TERRITORY AND DURATION
1. (a) This Agreement concerns a work provisionally entitled “The Twenty-First Century Millionaire.” to be written by Janice Carter, 2023, Burr Avenue, Bx, NY 10461) which will be a work of non-fiction, approximately 72000 words in length. The book will be about the life of a couple who have decided, among others, to become millionaires within a shortest possible period. They have limited capital but unlimited enthusiasm. They are inexperienced also and do not now know the tricks of the trade, meaning how to run a business successfully. They enter in to the trade of wholesale supply of toys to small shops in downtowns. Within a few months they realize how difficult it is to maintain the supply line. The traders want the goods on credit. Moreover, the toys become out of fashion soon. Next, they succeed in getting a business outlet, an independent shop in a shopping mall. They do good business and both the husband and wife prove excellent salespersons. They develop contacts with a share broker who gives them sound advice on investment in shares. Now destiny has begun to smile on them and they prosper by leaps and bounds. Within the space of 2-3 years they have become millionaires and now they have made investments in real-estate business. Luck favors them in this segment of business also, and they are on the right course to become billionaires soon. Thus, the plot of the book is about the success story of a determined couple. The book has no illustrations (the “Work”).
(b) The Author grants to the Publisher the sole and exclusive right to exercise and license (i) the right to reproduce, publish, distribute and sell (“publish”) the full length Work in the English language in a product reproduced in print-on-paper or other physical media (“book form”), (ii) the right to use the full length content of the Work in the English language in electronic media, and (iii) the additional and subsidiary rights in the Work specified in paragraph 4 below, in the following territory: throughout the world (the “Exclusive Territory”)
(c) Each of the rights granted in this Agreement is granted for the full period(s) of copyright protection (including all renewals and extensions) provided under any copyright laws now or hereafter in force in each country included within the territory granted to the Publisher.
ADVANCE
2. The Publisher will pay the Author, or the Author’s duly authorized representative, as an advance against the Author’s earnings from all sources under this Agreement.
No advance is payable to the author.
If the Work consists of more than one Book, unless otherwise specified in this Agreement, for the purposes of paragraphs 9, 11 and 12 only, amounts paid on signing will be "attributable" in equal proportions to each Book comprising the Work and amounts due on delivery and acceptance or publication in any form of a particular Book, or within a specified period of time after delivery and acceptance or publication of a particular Book, will be "attributable" to that Book. However, for all other purposes, all amounts paid as advances under this Agreement will be treated as a single author advance against earnings from all sources with respect to all the Books.
ROYALTIES
3. So long as copyright protection subsists in the Work, the Author will earn the following royalties:
(a) Hardcover Editions. On sales by the Publisher of copies of its hardcover editions of the Work, except as specified in subparagraphs (h) through (n) below, ten percent (10%) of the list price on the first five thousand (5,000) copies sold, twelve and one-half percent (12½%) of the list price on the next five thousand (5,000) copies sold and fifteen percent (15%) of the list price on all copies sold thereafter.
(b) Paperback Editions. On sales by the Publisher of copies of its paperback and paper-over-board editions of the Work (other than mass-market paperback editions, which are covered in the next subparagraph), except as specified in subparagraphs (h) through (n) below, seven and one-half percent (7½%) of the list price on all copies sold.
(c) Mass-Market Paperback Editions. On sales by the Publisher of copies of its mass-market (i.e., rack size) paperback editions of the Work, except as specified in subparagraphs (h) through (n) below, ten percent(10%) of the list price on all copies sold.
(d) Electronic Editions. With respect to any exploitation of all or any portion of the Work in electronic media by or on behalf of the Publisher or a licensee of the Publisher, except as specified in subparagraphs (e) through (g) below, a royalty equal to twenty percent (20%) of the amount received by the Publisher (except that if the exploitation is pursuant to a license of rights in both print and electronic media, the Author will earn a share under paragraph 5 in connection with such license and no royalty will be payable under this paragraph 3(d) in connection with such license).
(e) Graphic Books. On sales by the Publisher of copies of its print-on-paper editions of Graphic Books, except as specified in subparagraphs (h) through (n) below, six percent (6%) of the list price. With respect to any exploitation of the Publisher’s editions of Graphic Books in electronic media by or on behalf of the Publisher or a licensee of the Publisher, a royalty equal to ten percent (10%) of the amount received by the Publisher.
(f) Audio Editions. With respect to any exploitation of the Publisher’s Audio Editions by or on behalf of the Publisher or a licensee of the Publisher, except as specified in subparagraphs (h) through (m) below, a royalty equal to eight percent (8%) of the amount received by the Publisher.
(g) Multimedia Rights and Game Rights. With respect to any exploitation of Multimedia Rights, and any use of Games in electronic media by or on behalf of the Publisher or a licensee of the Publisher, a royalty equal to ten percent (10%) of the amount received by the Publisher (except that if the exploitation is of a work created by a licensee pursuant to a license of Motion Picture and Television Rights or Game Rights, the Author will earn a share under paragraph 5 in connection with such license and no royalty will be payable under this paragraph 3(g) in connection with such license).
(h) High Discount, Special Sales and Remainder Sales: On sales by the Publisher of copies of its hardcover editions of the Work in book form, and copies of its Audio Editions and Graphic Books in physical media form, except as specified in subparagraphs (i) through (n) below, when sold by the Publisher at discounts of 52% or more (but less than 60%) from the list price, ten percent (10%) of the amount received by the Publisher. With respect to copies of its hardcover editions of the Work in book form, and copies of Audio Editions and Graphic Books in physical media form, when sold by the Publisher at discounts of 60% or more from the Publisher’s list price, ten percent (10%) of the amount determined by deducting all manufacturing costs of the copies so sold from the amount received by the Publisher. On sales by the Publisher of copies of its paperback editions of the Work in book form, except as specified in subparagraphs (i) through (n) below, when sold by the Publisher at discounts of 55% or more (but less than 60%) from the list price, and on sales by the Publisher of unbound sheets, five percent (5%) of the amount received by the Publisher. With respect to copies of its paperback editions of the Work in book form, when sold by the Publisher at discounts of 60% or more from the Publisher’s list price, five percent (5%) of the amount determined by deducting all manufacturing costs of the copies so sold from the amount received by the Publisher.
(i) Export. On sales by the Publisher of copies of its hardcover editions of the Work in book form, and copies of its Audio Editions and Graphic Books in physical media form, except as specified in subparagraph (k) below, when sold by the Publisher for resale outside of the United States, a royalty equal to ten percent (10%) of the amount received by the Publisher, except that if the Author will be entitled to a share under paragraph 5 in conjunction with such sales, then no royalty will be payable under this paragraph 3(i). On sales by the Publisher of copies of its paperback editions of the Work in book form, except as specified in subparagraph (k) below, when sold by the Publisher for resale outside of the United States, a royalty equal to five percent (5%) of the amount received by the Publisher, except that if the Author will be entitled to a share under paragraph 5 in conjunction with such sales, then no royalty will be payable under this paragraph 3(i).
(j) Direct Consumer Sales. On sales by the Publisher of copies of its editions of the Work in book form, and copies of its Audio Editions and Graphic Books in physical media form, when sold by the Publisher or a U.S. affiliate of the Publisher directly to the consumer, whether by mail order solicitation, coupon or direct mail, from a website, through solicitation by radio or television or over any digital or cellular network, or otherwise, a royalty equal to ten percent (10%) of the amount received by the Publisher on the first 10,000 copies sold directly to the consumer and fifteen percent (15%) of the amount received by the Publisher on all copies sold directly to the consumer thereafter.
(k) Premium Sales. On sales by the Publisher of copies of its editions of the Work in book form, and copies of its Audio Editions and Graphic Books in physical media form, when sold by the Publisher in a premium sale or sold to companies or organizations for usage or distribution by them in connection with their own activities or with the sale of their own products or services, a royalty equal to five percent (5%) of the amount received by the Publisher.
(l) Short-run Printings. On sales by the Publisher of copies of its editions of the Work in book form, and copies of its Audio Editions and Graphic Books in physical media form, when sold by the Publisher from any reprinting of 1500 copies or less (excluding individual copies printed on a print-on-demand basis) made at least twelve (12) months after initial publication of that edition, provided the regular sales of that edition of the Work during the royalty period immediately preceding the royalty period in which such a reprinting occurs have not exceeded five hundred (500) copies, a royalty equal to one-half (1/2) of the royalty rate that would otherwise apply to that sale under this paragraph 3.
(m) Collections. On sales by the Publisher of copies of its editions of any collection, omnibus volume, anthology or other compilation (a “Collection”) in physical media form that includes the English language text of the Work (as well as any artwork included in the Work) and/or of any Audio Editions or Graphic Books, except as specified in subparagraph (n), a royalty equal to the otherwise applicable royalty as provided herein prorated based on the number of works in the Collection.
(n) Free Copies. With respect to copies given away free for publicity or promotional purposes, or to induce additional sales, and with respect to copies destroyed or given or sold to the Author, no royalty will be payable.
(o) Definition of Amount Received by the Publisher. When used in this Agreement, except as provided below, “amount received by the Publisher” means sums of money actually received by the Publisher. In the case of use of the Work or any Derivative Work in electronic media:
(i) “amount received by the Publisher” means sums of money actually received by the Publisher from any third party in exchange for the right to use (or authorize the usage of) all or any portion of the Work or the Derivative Work, whether for a copy delivered on physical media or a copy delivered digitally, or for access to (or the right to grant access to), all or any portion of the Work or the Derivative Work in any electronic media; and
(ii) if any amount received by the Publisher is attributable to the use in electronic media of the Work or the Derivative Work and any other works, the Publisher will determine the portion of such amount that is attributable to the Work as follows: (1) if the Publisher receives from a third party an allocation of the amount it receives among the works used, the Publisher will utilize such allocation; and (2) in the absence of any such third-party allocation, the Publisher may utilize a determination of end user access to or unique page views of the Work or the Derivative Work (in each case including an estimate determined by sampling) or the ratio of the list price of the Work or the Derivative Work to the total of the list prices of all of the works to which the amount is attributable or, if none of the foregoing methods is applicable, the Publisher may utilize any other method of allocation it determines in good faith to be equitable.
Taxes included in the amount received; any insurance, shipping, mailing, freight, duties, customs clearance or other similar charges included in the amount received; any payment made to reimburse the Publisher for manufacturing costs; any charges for use of a digital delivery service included in the amount received; any foreign tax withholdings; and any fees or commissions paid by the Publisher to finders or third-party sales or licensing agents in connection with the transaction will be deducted from the sums of money actually received. All references to the Work in subparts (i) and (ii) in this subparagraph (o) will include Derivative Works.
(p) If the Publisher or a U.S. affiliate of the Publisher creates or commissions the creation of text and/or art for a Graphic Book edition by a writer and/or artist (or writer/artist team) (“Commissioned Graphic Book Material”), then the Publisher will recoup the amounts paid or to be paid to such writer and/or artist (or writer/artist team) in connection with the creation of the Commissioned Graphic Book Material as follows: (1) any royalty payable to the Author under paragraph 3 from sales by the Publisher of a Graphic Book edition that uses Commissioned Graphic Book Material will be reduced by any royalty paid or to be paid on such sales to the writer and/or artist (or writer/artist team) of the Commissioned Graphic Book Material; and (2) the Author’s share under paragraph 5 of any amounts received by the Publisher from any license to a third party granting the right to use Commissioned Graphic Book Material will be calculated based on the difference between the amount received by the Publisher from such license less the amount paid or payable by the Publisher or its U.S. affiliate to such writer and/or artist (or writer/artist team) with respect to the Commissioned Graphic Book Material.
(q) In all cases in subparagraphs (a) through (m) above, the computation of the number of copies sold will be net of returns. Notwithstanding anything to the contrary contained herein, (i) if any royalty rate specified in this paragraph 3 is to escalate by reason of the number of copies sold, then no sales for which royalties are payable under subparagraphs (h) through (k) of this paragraph 3 will be taken into account for the purpose of determining the rate to be applied, and sales made by the Publisher or a U.S. affiliate of the Publisher direct to the consumer will only be taken into account for the purpose of determining the royalty rate to be applied under subparagraph 3(j); (ii) if the list price of an edition is reduced by the Publisher for the purposes of any sale so that the reduced list price is at least forty percent (40%) lower than the list price of that edition when initially published then, for the purposes of calculating the amount of any discount upon such sale only, the list price of that edition will be deemed to be the initial list price; and (iii) if by arrangement with any customer of the Publisher the discount applicable to a sale is increased in exchange for a waiver by the customer of the right to return copies previously sold to that customer at a lower discount, then the higher discount will be used for purposes of determining the royalty rate applicable to the sale of those copies. If the Work consists of more than one Book or a Book or the Work is published in more than one edition, the applicable royalty set forth in the various subparts of this paragraph 3 will apply separately to each Book and each edition; accordingly, in determining whether particular sales levels have been reached for the purposes of fixing the applicable royalty rate, only sales of the Book in the edition for which the calculation is being made will be included. In any case in which the Author would otherwise be entitled both to earn a royalty under this paragraph 3 and to earn a percentage of the amount received by the Publisher under paragraph 5 on the same sale or receipts, the Author will earn a royalty in accordance with this paragraph 3 (but will not also be entitled to payment under paragraph 5), except where this paragraph 3 provides that no royalty will be due (in which case the Author will receive no royalty) or expressly states that the Author will be entitled to a payment under paragraph 5 (in which case the Author will receive the share specified in paragraph 5 of the amount received by the Publisher). If a U.S. affiliate of the Publisher publishes any edition of the Work or a Derivative Work, its edition will be treated as the Publisher’s (and sales by the affiliate will be treated as sales by the Publisher) for the purposes of this Agreement.
ADDITIONAL AND SUBSIDIARY RIGHTS
4. The following additional and subsidiary rights in the Work are included in the grant of rights and defined as follows:
(a) “First Serial Rights,” meaning the rights to use all or any portion of the Work in the English language in newspapers, magazines and other periodicals (whether in one or more issues) before the date the Work is first available for sale to the public in book form, including the right to create for such usage abridged, adapted and condensed versions of the Work.
(b) “Second Serial Rights,” meaning the rights to use all or any portion of the Work in the English language in newspapers, magazines and other periodicals (whether in one or more issues) on or after the date the Work is first available for sale to the public in book form, including the right to create for such usage abridged, adapted and condensed versions of the Work.
(c) “Selection Rights,” meaning the rights (i) to create condensed, adapted and abridged English language versions of the Work, to publish and to use those versions; (ii) to use any portion of the English language text of the Work (as well as any artwork included in the Work) in electronic media; (iii) to use all or any portion of the English language text of the Work (as well as any artwork included in the Work) as part of a Collection in any media granted to the Publisher by this Agreement, and (iv) to grant permissions to use all or any portion of the Work in print and other media granted to the Publisher by this Agreement (including but not limited to reprographic and other image processing technologies for storage, display and printing of images of the printed page).
(d) “Graphic Book Rights,” meaning the rights: (i) to create (or have created) Graphic Books in the English language based on the Work and to publish those Graphic Books in book form; (ii) to publish and to use those Graphic Books (as well as text, art or other excerpts from those Graphic Books) in electronic media and in any other form or media, and to exercise and exploit in connection with those Graphic Books the same additional and subsidiary rights that are granted to the Publisher by this Agreement in the Work; and (iii) to use the title of the Work in connection with, and in the advertising, promotion and publicity for, those Graphic Books. A “Graphic Book” as used anywhere in this Agreement means a work derived from the Work consisting of sequential art with captions, boxes and/or bubbles of text (which text may be original, adapted from the Work and/or taken verbatim from the Work, and will include any Alt-text). Graphic Book Rights include, without limitation, the right to incorporate plot elements, characters, fanciful places, situations, facts, ideas and events taken or derived from the Work into a Graphic Book.
(e) “Sound Reproduction Rights,” meaning the rights to create, to publish and to use in electronic media, non-dramatic English language readings of all or any portion of the Work (including condensed, adapted and abridged versions), together with introductory, concluding, transitional and narrative material, as well as background music and/or other incidental or background sounds, whether in the form of records, tape recordings, sound cassettes, compact discs, electronic media or other technologies now known or hereafter devised (“Audio Editions”).
(f) “Non-dramatic Reading Rights,” meaning the rights to perform non-dramatic human voice readings of the Work (including, but not limited to, non-dramatic readings broadcast or transmitted by television or other electronic media, whether live or pre-recorded) with the right to accompany the readings with display of text and/or artwork from the Work. The Publisher may authorize the use of the Work in such forms without royalty or other fee.
(g) “Translation Rights,” meaning the rights to translate the Work into languages other than English, to publish full length translations in book form and to use full length translations in electronic media, and to grant First Serial Rights, Second Serial Rights, Selection Rights, Graphic Book Rights and Sound Reproduction Rights in languages other than English.
(h) “Multimedia Rights,” meaning the rights to create, to publish and to use in electronic media, works in any language based on the Work (including the rights to create, and to incorporate into those works, text, dialogue, sounds, music, artwork, video, animation, moving images, interactive elements, and other matter whether or not taken or derived from the Work or from the plot elements, characters, fanciful places, situations, facts, ideas and events portrayed in the Work), provided, however, that if Motion Picture and Television Rights are not also granted to the Publisher by this Agreement, Multimedia Rights do not include the right to create and use dramatic versions of the Work in electronic media.
(i) “Motion Picture and Television Rights,” meaning the rights to exploit the Work and the Author’s name (as the author of the Work) in motion pictures (including without limitation made-for-television movies), television series and mini-series (“Motion Pictures”), and in prequels and sequels to such Motion Pictures, together with those allied rights customarily granted to motion picture producers, production companies or studios, and the rights to distribute and sell such Motion Pictures and prequels and sequels by all mechanical or electronic visual reproduction, display and performance, transmission and broadcast methods and technologies now known or hereafter devised (including by means of cassettes, DVDs, and other devices for home play and the right to use such Motion Pictures and prequels and sequels in electronic media).
(j) “Game Rights,” meaning the rights to create games of any type, including without limitation board games, video games, electronic games and games to be played over the internet or other digital networks, in any language based on or derived from the Work and/or text, artwork, plot elements, characters, fanciful places, situations, facts, ideas, and events in the Work (“Games”), and to use Games in any manner or media.
(k) “Dramatic Rights,” meaning the rights to create, perform and use live theatrical stage productions and dramatic radio productions based on the Work, and productions that set the Work to music.
(l) “Merchandising and Commercial Rights,” meaning the rights to exploit the Work and the Author’s name (as the author of the Work), and/or to use material taken or derived from the Work or from the plot elements, characters, fanciful places, situations, facts, ideas and events in the Work, in connection with merchandise, services or other commercial uses.
(m) “Rights to enable access,” meaning the rights to reproduce and publish the Work in Braille and to use and authorize the use of the Work or any Derivative Works in any other form and on any devices that enable or facilitate access to the Work for individuals who are blind, who have vision impairments, or who have physical or learning disabilities. The Publisher may authorize the use of any edition of the Work or any Derivative Work in such forms and on such devices without royalty or other fee. Should any amount be received by the Publisher in connection with the exploitation of such rights, the Author will earn the royalty or percentage of the amount received otherwise applicable to the use that resulted in such receipts.
(n) The following terms will have the following meanings when used in this Agreement:
(i) “electronic media” means all electronic, magnetic, digital, optical, laser-based and other media, devices and systems for the storage, manipulation, display, retrieval, publication, distribution, broadcast and/or transmission of text, data, images, sounds and/or other information in any electronic form, whether now known or hereafter devised, including, without limitation, disk, CD-ROM, Cdi, DVD, integrated circuit card or chip, cellular device, and the Internet or other digital network, service or database or cellular or other transmission, whether interactive or not;
(ii) “use” (and its variants), when referring to the rights granted in this Agreement, includes, without limitation, copying or otherwise reproducing, publishing, distributing, selling, displaying, performing, transmitting, uploading, downloading and broadcasting;
(iii) “periodical” means a newspaper, magazine or similar publication that is published as issues distributed at fixed intervals primarily in print-on-paper formats, and any electronic media versions of those issues (such as a periodical’s online digital archive, website or database that makes available the periodical’s issues); and
(iv) “artwork” means photographs, illustrations, paintings and other images (whether created by hand or through means of a camera, computer or other device now known or hereafter devised).
(o) If any rights granted to the Publisher are not granted to it on a worldwide basis, it may nevertheless exercise or authorize others to exercise the rights granted by means of the internet or any other digital network, service or database or by cellular or other transmission (i) if the network, service, database or transmission is targeted primarily to customers or users within the territory granted or (ii) through any third-party distributor or service provider primarily serving customers within the territory granted, in each case even if some persons outside such territory may have access to such network, service, database or transmission. If the Publisher is granted rights under multiple subparts above (e.g., both Selection Rights and Sound Reproduction Rights), it may combine or authorize the combination of such rights into single products or services.
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LICENSING – SHARING OF RECEIPTS
5. The Author will earn amounts equal to the percentages indicated below of the amount received by the Publisher from licenses to others by the Publisher of the following rights:
(a) English language Book Publication Rights (including book club or similar organizations) when licensed for exercise in the United States, its territories and dependencies and Canada (regardless of any additional territory granted) 50%
(b) English language Book Publication Rights (including book club or similar organizations) when licensed for exercise solely outside the United States, its territories and dependencies and Canada 80%
(c) First Serial 90%
(d) Second Serial 50%
(e) Selection (excluding book club and similar organizations) 50%
(f) Graphic Book 50%
(g) Sound Reproduction 50%
(h) Non-dramatic Reading 50%
(i) Translation 75%
(j) Motion Picture and Television 90%
(k) Game 75%
(l) Dramatic 90%
(m) Merchandising and Commercial 75%
“Book Publication Rights” as used herein means the right to publish the Work in book form (whether or not other rights are also granted as part of the license).
If the Publisher elects to itself exercise any of the above rights for which a royalty is not provided elsewhere in this Agreement, the Author will earn royalties with respect to the exercised rights in amounts consistent with applicable industry standards as reasonably determined by the Publisher.
INTELLECTUAL PROPERTY OWNERSHIP
6. (a) Copyright in the Work. The copyright in the Work will belong to the Author. The Publisher agrees to imprint the copyright notice authorized by the United States copyright laws in each copy of the Work distributed by the Publisher. The Publisher is hereby authorized to register the copyright in the Work in the United States copyright office in the name of the Author, and the Publisher agrees to register the copyright of the Work in the name of the Author in the United States within three months of the Publisher’s initial publication of the Work (provided, however, that the Publisher will not be obligated to register the copyright if, prior to the time of publication, the U.S. copyright law is amended so that registration is no longer a prerequisite to the recovery of attorneys’ fees and statutory damages in an infringement action). If the Work consists of more than one Book, the provisions of this subparagraph (a) will apply separately to each Book comprising the Work. With respect to any rights reserved to the Author hereunder, the Author agrees to take all steps necessary to protect the copyright in the Work.
(b) Copyright in Derivative Works. The copyrights in any derivative works based on the Work that this Agreement authorizes the Publisher to create or to authorize others to create (“Derivative Works”), including without limitation the performance copyright in any sound recordings this Agreement authorizes the Publisher to create or authorize others to create, will, at the Publisher’s option, be owned by the Publisher or a U.S. affiliate of the Publisher and/or any licensee of the Publisher and the Publisher may register or authorize its U.S. affiliate or its licensee to register any such copyright in its own name, it being understood that such registration does not affect the ownership of the copyright in the Work.
(c) The Publisher’s Intellectual Property. The Author acknowledges that the Publisher has sole and exclusive ownership of the Publisher’s trademarks, trade names, logos, series names, imprints and any other source identification now or hereafter used by the Publisher on and/or in connection with the Work or its exercise of the rights granted in this Agreement, as well as any trade dress, any graphic art or designs, and such advertisements and promotional materials as may be created or commissioned by the Publisher for usage on, in and in connection with its publication of the Work and its exercise of such rights (the “Publisher’s Intellectual Property”). Nothing in this Agreement (including, but not limited to, the right of the Author to purchase copies of the Publisher’s editions on termination), and no reversion of rights in the Work, will permit the Author to use the Publisher’s Intellectual Property during the term of this Agreement or thereafter, without first obtaining the Publisher’s consent in writing.
RIGHTS RESERVED TO THE AUTHOR
7. All rights in the Work now existing, or which may hereafter come into existence, except those specifically granted to the Publisher in this Agreement, are reserved to and by the Author (the “Reserved Rights”). The Author may exercise and grant licenses for the exploitation of any Reserved Rights subject to the following limitations: the Author agrees that during the term of this Agreement (a) the Author will not exercise or authorize others to exercise the Reserved Rights in competition with or to the detriment of the Publisher; (b) the Author will not authorize or arrange for the publication, in book form or electronic form primarily intended to be read (or other form or media granted to the Publisher), of a novelization, tie-in, adaptation or other version of (i) the Work or (ii) a work in another medium based on the Work or from which the Work was derived (and the Author represents, warrants and covenants that the Author has not previously authorized or arranged for any such publication).
COMPETITIVE WORKS
8. (a) The Author will not authorize or arrange for the publication, distribution or sale in the Exclusive Territory, otherwise than by the Publisher, of any work by the Author (or anyone who receives an author’s credit on the Work) that will directly compete with the Work or diminish the value of any rights granted to the Publisher by this Agreement where such publication, distribution or sale will take place at any time during the term of this Agreement. If the Work consists of more than one Book, all references to the Work in subparagraphs (a) above and (f) and (g) below will be deemed to refer to each of the Books comprising the Work considered separately.
(b) Except as otherwise disclosed by the Author in writing to the Publisher prior to the execution of this Agreement, and excluding other books that may already be under separate contract to the Publisher, the Author will complete the Work and deliver it to the Publisher prior to commencing the writing of any other book.
(c) If the Work consists of one or more books in a series, the Author agrees that additional books in the series will not be written until all the book(s) in the series in which the Publisher has been granted rights have been completed and delivered to the Publisher, and the Author will not authorize or arrange for the publication of any additional book in the series prior to the first to occur of: (i) the first anniversary of the Publisher’s first publication in book form of the last book under contract to the Publisher in the series or (ii) six months after the publication by the Publisher of a paperback edition of the last book under contract to the Publisher in the series.
(d) If the Work is a work of fiction, the Author will not authorize publication of any other novel in hardcover or paperback book format within the Exclusive Territory to be published prior to the end of six (6) months after the Publisher’s first publication of the Work in book form (excluding a novel for which the Author is already under contract to another publisher and reprint editions of previously published novels).
(e) If, under the terms of this Agreement, the Author has retained First Serial Rights in the Work, the Author will obtain the prior approval of the Publisher before licensing such rights to a third party. The Author will in no event authorize the licensee to distribute, sell, anthologize or sublicense the serialization individually.
(f) If, under the terms of this Agreement, the Author has retained any publication rights in the Work in the English language, the Author will obtain the prior approval of the Publisher of any arrangement made for publication of the Work in the English language where such publication would precede the Publisher’s initial publication of the Work in the United States in book form.
(g) If, under the terms of this Agreement, the Author has retained any Sound Reproduction Rights, the Author will ensure that no Audio Edition of the Work is published where such publication would precede the Publisher’s initial publication of the Work in the United States in book form.
THE AUTHOR’S DELIVERABLES
9. (a) On March 4, 2015(the “Due Date”), the Author will deliver the Work to the Publisher, in form and content satisfactory to the Publisher. To this end, the Author will deliver: (i) “ The Twenty-first Century Millionaire” (the “Text”), complete and ready for the copyeditor, in digital file format and in conformity with the Publisher’s “Author Guidelines” that are current as of the time of delivery, plus a clean printout of the complete digital file containing the Text, double spaced, on sequentially numbered pages; and (ii) all photographs, charts, maps, illustrations and other artwork described in paragraph 1(a) or otherwise to be included in the Work (collectively, the “Illustrative Materials”), all in a form suitable for reproduction.
(b) The Author agrees to obtain, and, upon request, to provide to the Publisher, all permissions, releases, licenses and consents (collectively, the “Clearances”), in form acceptable to the Publisher, and sufficient to allow the Publisher to exercise and license all of the rights in the Work granted to the Publisher by this Agreement. If any such Clearances are missing or unsatisfactory, the Publisher may obtain them and the reasonable cost of such Clearances will be deducted from monies otherwise payable to the Author under this Agreement. If the Work is a work of nonfiction and the Publisher concludes that an index is necessary or desirable, the Publisher may have one prepared and the reasonable cost of preparing the index will be deducted from monies otherwise payable to the Author under this Agreement.
(c) If the Author has not delivered the Work to the Publisher by the end of thirty (30) days after the Due Date, then at any time thereafter the Publisher may, at its option, terminate this Agreement by written notice of termination to the Author. Upon the Publisher’s written notice of termination, the Author will repay to the Publisher all sums of money previously paid to or on behalf of the Author under this Agreement and, upon receipt of such sums of money in full, the Publisher will revert to the Author all rights in the Work granted to the Publisher by this Agreement.
(d) If the Work is delivered to the Publisher and the Publisher concludes that the Work, or any portion thereof, is unsatisfactory but can be revised to the Publisher’s satisfaction within a reasonable time, the Publisher will provide the Author with its editorial comments and the Author will deliver a revised manuscript of the Work (in the forms required by subparagraph (a) above) by a deadline reasonably set by the Publisher. If the Publisher concludes that the Work, or any portion thereof, as first submitted cannot be revised to its satisfaction within a reasonable time or if the Author fails to deliver a revised manuscript of the Work by the Publisher’s deadline or if the Author delivers a revised manuscript but the Publisher determines that the revised manuscript is still unsatisfactory, the Publisher may reject the Work by written notice to the Author.
(e) If the Work is rejected as provided in subparagraph (d) above, the Publisher will be relieved of all further obligations under this Agreement (including, but not limited to, all obligations to make any further payments for the Work), and the Author will be obligated to repay to the Publisher all monies paid to or on behalf of the Author under this Agreement. If the Author has used best professional efforts to produce a satisfactory manuscript, the Authors obligation to repay such monies to the Publisher will be delayed until the Author has made arrangements with any third party for exploitation of rights in any version of the Work or of any other work on a similar topic; repayment will be made to the Publisher out of the first and, to the extent necessary, all subsequent monies received from any third parties with respect to any version of the Work or of any other work on a similar topic until the Publisher is repaid in full. Upon the Author’s receipt of notice that the Work has been rejected, the Author may elect to offer any rights in the Work that were granted to the Publisher by this Agreement to third parties and may enter into contracts granting rights to such third parties if and only if such contracts provide for payment directly to the Publisher of the first and subsequent monies to be paid by such third parties until the Publisher is repaid all monies paid to or on behalf of the Author under this Agreement. If within one year following rejection the Publisher has not been repaid at least fifty percent (50%) of all monies paid to or on behalf of the Author under this Agreement, the Author will promptly pay to the Publisher an amount sufficient to bring the total repaid up to fifty percent (50%) of such sums. Thereafter, the Author will continue to be obligated to repay the Publisher the outstanding balance out of the first and, to the extent necessary, all subsequent monies received from any third parties with respect to any version of the Work or of any other work on a similar topic. Upon the Publisher’s receipt of such monies in full, the Publisher will revert to the Author all rights in the Work granted to the Publisher by this Agreement and this Agreement will be deemed terminated in its entirety.
(f) If the Work consists of more than one Book then, except as otherwise specified herein, subparagraphs (a) through (e) above will apply separately to each Book comprising the Work. Notwithstanding the above, any termination under this paragraph 9, whether by reason of the Author’s failure to deliver or the Author’s delivery of an unsatisfactory manuscript, will apply only to the particular Book concerned (unless the Publisher otherwise elects), in which case: (i) all rights in the terminated Book will revert to the Author in accordance with subparagraph (c) or (e) above (whichever is applicable), but this Agreement (including, but not limited to, this paragraph 9) will remain in full force and effect with respect to the other Book(s) comprising the Work; (ii) the total Author Advance provided for in paragraph 2 will be reduced to exclude the portion attributable to the terminated Book; and (iii) the Authors obligation to repay amounts advanced will be limited to the portion of the Author Advance paid that is attributable to the terminated Book. The Publisher may elect to have its termination apply also to any other Book(s) comprising the Work that are unpublished at the time of termination (in which case the consequences of termination specified in the preceding sentence as to the terminated Book, and the portion of the Author Advance paid that is attributable to it, will also apply to those other Book(s) and the portions of the Author Advance paid that are attributable to them). If the termination of a Book under this paragraph 9 is by reason of the Author’s delivery of an unsatisfactory manuscript, and the Author has used best professional efforts to produce a satisfactory manuscript for that Book, the Authors obligation to repay to the Publisher the portion of the Author Advance attributable to the rejected Book (and any other Books to which the Publisher elects to have the termination apply) will be governed by subparagraph (e) above.
EDITING AND CORRECTION OF PROOFS
10. The Author authorizes the Publisher to make the Work conform to the Publisher’s standard style of punctuation, spelling, capitalization and usage and to make other customary copy editing changes, at the Publisher’s own expense. The Author will read, revise, correct and return to the Publisher any proofs of the Work furnished by the Publisher by the deadline specified by the Publisher. If the Author fails to return the proofs by that deadline, the Publisher will have the right to proceed to publication without the Author’s alterations/corrections. The cost of the Author’s alterations in the proofs in excess of ten percent (10%) of the initial setting cost will be charged against the Author’s royalty account, except that the Author will not be charged for corrections arising from the typesetter’s failure to accurately reproduce the copy-edited manuscript.
PUBLICATION
11. (a) Within eighteen (18) months after the later of its acceptance of the Work (i.e., the Text, the Illustrative Materials and, if so requested by the Publisher, the Clearances) or the Due Date specified in paragraph 9, the Publisher will publish the Work at its own expense, in a format, style, manner and at a price it deems best suited to the sale of the Work. If the Work consists of more than one Book, the Publisher will not be required to publish the second and each subsequent Book comprising the Work prior to twelve (12) months after the Publisher’s publication of the immediately preceding Book. Such period(s) will be extended by an amount of time equal to any delay caused by the Author or by circumstances beyond the Publisher’s reasonable control (including, but not limited to, those described in paragraph 27). It is understood that the extent and manner of advertising, promotion and publicity, imprint, trademark, logo, cover presentation, quantity printed, list price, number and destination of free copies and all other decisions regarding publication, design, manufacture, distribution, marketing and sale will be at the sole discretion of the Publisher.
(b) If the Publisher has not published the Work within the time period set forth in subparagraph (a) above, the Author may, at any time thereafter while the Publisher’s failure to publish continues, serve a written demand upon the Publisher by certified mail, return receipt requested, requiring the Publisher to publish the Work. If the Publisher’s failure to publish persists for six months after the receipt by the Publisher of such a written demand, the Author may terminate this Agreement by written notice of termination sent by the Author by certified mail, return receipt requested, and received by the Publisher prior to publication or commencement of printing. Immediately upon the Publisher’s receipt of such notice of termination, this Agreement will terminate and all rights in the Work granted in this Agreement to the Publisher will revert to the Author. In the event of such a termination, such payments as have already been made to the Author under this Agreement as advances will be the Author’s to keep in full discharge of all of the Publisher’s obligations to the Author under or in connection with this Agreement. No other claims, damages or remedies (whether legal or equitable, and whether founded on breach of contract, tort or otherwise) may be pursued against the Publisher by the Author or the Author’s agents, heirs or assigns for the Publisher’s failure or refusal under any circumstances to publish the Work or to perform any duty owed to the Author where the alleged harm or damage arising therefrom is a failure to publish the Work.
(c) If the Work consists of more than one Book, subparagraphs (a) and (b) of this paragraph 11 will apply separately to each Book comprising the Work. Any termination pursuant to subparagraph (b) will apply only to the particular Book concerned and the reference to advances contained therein will be deemed to mean the portion of the Author Advance paid that is attributable to that Book; this Agreement will continue in full force and effect with respect to the other Book(s) comprising the Work.
12. The Publisher will not be obligated to publish or continue to publish the Work if, in the Publisher’s judgment, the Work may lead to legal liability. If the Publisher concludes that there appears to be a substantial legal risk on account of the Work, or if a legal claim is asserted against the Work, the Publisher may delay publication or cease publication pending further investigation or the resolution of any such risk or claim. The Publisher may request such revisions to or deletions from the Work as will be necessary in the opinion of the Publisher or the Publisher’s legal counsel to remove any such risk or resolve any such claim. If the Publisher submits the Work for legal or other professional review, then the Work will not be deemed accepted until all issues raised by such review have been resolved to the Publisher’s satisfaction, regardless of whether any advance installment otherwise payable to the Author on acceptance of the Work has been paid. In any case, no revisions to or deletions from the Work or request for substantiation made by the Publisher or its legal counsel will be deemed to impose on the Publisher any obligation of verification or to affect in any way the Author’s warranties, representations, or duty of indemnification under paragraph 21 of this Agreement, which will continue to apply to the Work, whether or not changed at the request of the Publisher or the Publisher’s legal counsel. If the Publisher makes the decision to cancel the publication of the Work or to cease distributing the Work as provided for in this paragraph 12, then the Publisher may terminate this Agreement in writing at any time and/or may exercise any other remedies available to it under the circumstances. In the event of such termination of this Agreement, all amounts paid by the Publisher to the Author pursuant to this Agreement will be repaid promptly by the Author to the Publisher. If the Work consists of more than one Book, this paragraph 12 will apply separately to each Book comprising the Work. Any termination pursuant to this paragraph 12 will apply only to the particular Book concerned (unless the Publisher otherwise elects) and the reference to amounts paid by the Publisher to the Author will be deemed to mean those amounts paid that are attributable to that Book. This Agreement will continue in full force and effect with respect to the other Book(s) comprising the Work, except that the Publisher may elect to have its termination apply also to any other Book(s) comprising the Work that are unpublished at the time of termination (in which case the consequences of termination specified in the preceding sentence as to the terminated Book, and the portion of the Author Advance paid that is attributable to it, will also apply to those other Book(s) and the portions of the Author Advance paid that is attributable to them).
PROMOTION
13. (a) The Publisher and its licensees may use the Author’s name, biography, and likeness and any additional material that the Author may deliver to the Publisher in connection with promoting the Work (i) in all editions of the Work and in any Derivative Works, and (ii) in connection with the advertising, publicity and promotion of the Work and Derivative Works (including without limitation promotional uses described in subparagraph 13(c)) and the exploitation of all rights granted to the Publisher under this Agreement.
(b) The Author will cooperate with the Publisher in promoting the Work. Upon the Publisher’s request, the Author will make himself/herself available to the Publisher to participate in Author tours and other promotional activities (such as, for example, Author blogs, podcasts and online chats) and will prepare and deliver to the Publisher such additional material as the Publisher may reasonably request for the Publisher to use in connection with publicity and promotion of the Work. If, at the Publisher’s request, the Author participates in a tour set up by the Publisher, the Publisher will pay for the Author’s reasonable travel expenses in accordance with its standard practices for Authors’ tours and will consult with the Author concerning the scheduling of the tour.
(c) To promote the Work and any Derivative Works, the Publisher may (i) distribute copies (such as review copies and advance reading copies) of the Work and any Derivative Works, (ii) use or grant permission to use jackets, covers and/or extracts of the Work and any Derivative Works, and (iii) permit the Work (including early versions of the Work) and any Derivative Works to be included in content search programs in electronic media (and the Publisher may authorize its licensees to do all of the foregoing); promotional uses may be in any print or electronic media or any other media granted to the Publisher by this Agreement. The Publisher may also, to promote the Work and Derivative Works, create and disseminate in any media advertisements and other promotional materials, including without limitation advertisements and promotional materials that utilize dialogue, sounds, music, artwork, video, animation, moving images and/or interactive elements based on the Work or Derivative Works and/or on the plot elements, characters, fanciful places, situations, facts, ideas and events portrayed in the Work or Derivative Works (and the Publisher may authorize its licensees to do all of the foregoing). The Publisher may also distribute or license distribution of products containing a reproduction of the jacket or cover of any edition of the Work and any Derivative Works with the Author’s name visible thereon, provided, however, that if any such products are offered for sale by the Publisher or its licensees, the Author will earn thirty-three and one-third percent (331/3%) of the amount received by the Publisher after deduction of any costs incurred by the Publisher in connection therewith (including, but not limited to, production costs and any fees or royalties paid for use of cover art in the products).
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AUTHOR’S COPIES
14. Upon the Publisher’s first publication of the Work in book form, the Publisher will give ten (10) free copies to the Author and five (5) free copies to the Author’s agent. The Author will also be entitled to five (5) free copies of any paperback reprint edition of the Work published by the Publisher and five (5) free and copies of Audio Editions and Graphic Books published by the Publisher in physical media form. If the Work consists of more than one Book, the Author will receive the specified number of copies of each Book comprising the Work. Should the Author desire more copies for personal use, the Author may place pre-paid orders to purchase such copies at one-half the list price, plus shipping charges (subject to availability in inventory). Copies given to or purchased by the Author hereunder are non-returnable, and may not be sold by the Author.
SUBSEQUENT EDITIONS
15. If the Author delivers additional material for inclusion in a subsequent edition of the Work or in any Derivative Works, or delivers any additional material for promotion of any edition of the Work or Derivative Works, the Publisher will have all rights in that subsequent edition of the Work, those Derivative Works and in such additional material as the Publisher has in the Work under this Agreement.
AUTHOR’S PROPERTY
16. The Publisher will not be responsible for any greater degree of care of any of the Author’s materials in its custody than it takes of its own materials. In addition, except in the case of the Publisher’s own gross negligence or intentional misconduct, the Publisher will not be responsible for loss or damage to any materials furnished by the Author. The Author will retain copies of any such materials furnished (or, in the case of photographs, the negative or duplicate positive of each photo) and the Publisher will in no event have any liability with respect to any materials for which the Author fails to do so.
ACCOUNTING AND PAYMENTS
17. (a) Except as otherwise provided herein, the Publisher agrees to send, on its then regular royalty payment schedule for the imprint under which the Work is initially published, semi-annual statements of account following publication. The Publisher will make payment of the amount due, as shown on the statement, at the time the statement is rendered. Notwithstanding any other provision of this Agreement, no earnings will be due or payable to the Author unless and until the Author’s earnings under this Agreement exceed the total Author Advance (paid and to be paid in the future) under the terms of this Agreement [when bonus clauses included, add here: and any bonuses payable under paragraph ]; once the Author Advance [and any applicable bonuses] is earned out, the excess of the Author’s earnings above the Author Advance [and any applicable bonuses] will be paid as provided above. In rendering any statements and in making any payments hereunder, the Publisher may deduct and withhold reserves against returns in reasonable amounts. The Publisher may also make any tax or other deductions required by law. If the balance to the credit of the Author at the time any semi-annual statement is prepared is less than fifty dollars ($50.00), no payment will be made to the Author and the amount due will be carried forward; if in any succeeding accounting periods the total balance to the credit of the Author is less than fifty dollars ($50.00), the Publisher may discontinue providing statements until such credit balance totals fifty dollars ($50.00) or more, but the Publisher will send statements and make payments at the written request of the Author.
(b) The Author understands that the Publisher may ask the Author to provide certain documentation concerning the Authors taxpayer status, and that unless the Author promptly provides such documentation the Publisher may be required to withhold a percentage of amounts payable to the Author hereunder in accordance with United States tax laws.
(c) Whenever the Author has received an overpayment of monies for any reason whatsoever under the terms of this Agreement or owes the Publisher any money under this Agreement or otherwise, it is agreed that the Publisher may deduct the amount of such overpayment and/or the amount owed from any sums that may accrue to the Author, whether under this Agreement or under any other agreements the Author may have with the Publisher, or may bill the Author for such overpayment or amount owed. An unearned portion of the Author Advance, however, will not be considered an overpayment or an amount owed by the Author.
18. The Author will have the right, upon prior written request, to examine at reasonable times the books of account of the Publisher insofar as they relate to the Work and the Publisher’s exercise and/or license of the rights granted to the Publisher herein; such examination will be at the sole expense of the Author unless errors of accounting amounting to five percent (5%) or more of the total sums paid to the Author pursuant to this Agreement are found to the Authors disadvantage, in which case, the reasonable cost of such examination will be borne by the Publisher. Statements rendered under this Agreement will be final and binding upon the Author unless objected to in writing, setting forth the specific objections thereto and the basis for such objections, within one year after the date the statement was rendered.
REMAINDERS
19. The Publisher will make reasonable efforts to inform the Author if it plans to remainder its entire inventory of copies of the Work and to offer to sell to the Author all of the copies of the Work to be remaindered at a price equal to the price the Publisher reasonably anticipates receiving in the remainder sale (but the Publishers failure to do so will not constitute a breach of this Agreement).
TERMINATION/UNAVAILABLE FOR SALE
20. (a) If the Publisher determines, in its sole discretion, that the Work or any edition thereof has ceased to have a remunerative sale, the Publisher may discontinue publication. If, at any time after five Read More
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