Achievers Publishing Inc.

 

Our Self-Publishing Agreement

This Self Publishing Agreement (“Agreement”) is entered into between Achievers Publishing Inc (API) of Calgary, a business registered in Canada and the Author. 

These are the terms of this Agreement:

Author Agreement

      1.      This constitutes a binding legal agreement between the Author and API. Please read this agreement carefully before using our services. We also recommend you print a copy off for your own records. By submitting any content to API Self Publishing Services, you (the "author") are deemed to have read, understood and agreed to each of the terms, conditions, and notices set forth in this agreement. In addition, when using any specific service, the author shall also be subject to and deemed to have read, understood and agreed to any posted conditions applicable to such services that may contain terms and conditions in addition to the terms, conditions and notices set forth in this agreement.

      2.      The Author has selected a Publishing Package in respect of the Book and has paid or agreed to pay according to the price stipulated for such Publishing Package on API's website at the time of such selection. "Publishing Package" means a package selected by the Author from API's website, comprising various services which may include formatting, design, editing and publishing of the Book, priced according to the extent of the package selected by the Author. Full details of the Publishing Package are set out on the API's website, and the price payable by the Author is that in force at the time of selection by the Author.

      3.      The Author undertakes to deliver one copy in electronic form or hard copy of his or her completed typescript of the Book to API and API shall, subject to the Author complying with the Author's obligations under this Agreement, and unless prevented by war, strikes, lock-outs or any other circumstances beyond API’s control, within 90 days of receipt of the typescript, as described, publish the Book.

      4.      API shall not be responsible for any accidental loss of or damage to, the Book, including illustrations and other material, by fire or otherwise, while it is in its custody or in the course of production.

      5.      The Author undertakes to read and correct the proofs and to return them to API within twenty eight days of his receiving them, failing which API may consider them as past for press.

Author's Warrantee

      6.      The Author represents and warrants that he or she is at least 18 years of age and possesses the legal right and ability to enter into this agreement and to use API, in accordance with all terms and conditions set forth in this agreement and should he/she be accepted for publication, has the full power and authority to enter into and perform in accordance with its terms.

Author's Right to Publish the Book

      7.      The Author warrantees that the Book is entirely his/her work, except for parts taken from sources for which the Author has obtained written permission.

      8.      The Author warrants that the Book does not violate or infringe the rights of any persons, including without limitation, rights in copyrights, patents, trademarks, service marks, trade secrets, and other proprietary rights.

      9.      The Author warrants that the Book does not break the law or facilitate the breaking of the law, does not violate any copyright or other intellectual property right; does not contain material that is obscene, pornographic, inflammatory, or racially or otherwise objectionable and does not harm minors in any way.

     10.     The Author warrants that the work does not contain libel or defamation, falsified information or private information the author has no right to make public, is not threatening or harassing, and does not invade any individual's right of privacy or publicity.

     11.     The Author warrants that the Book could not give rise to any civil or criminal liability under his or her national, or international law.

     12.     To the best of the Author’s knowledge, all purported factual information in the Book is true and accurate, and the following of any advice in the Book will not be harmful to any user.

     13.     The Author warrants that he or she is the sole owner of the copyright in any associated cover or interior graphics supplied by the Author to API for the Book or the Author has secured written permission to use the graphics in the Book.

     14.     In addition to complying with all the above restrictions on content, the Author is responsible for adhering to all local and national laws that pertain to his/her location, wherever he or she is.

Licence to Publish the Book

     15.     The Author grants to API the non-exclusive, worldwide licence to print, publish, distribute and sell the Book in print form or e-book throughout the Agreement.

     16.      The Author also grants API throughout the Agreement the nonexclusive right to copy and to communicate to the public portions from the Book through API’s website and through its partner websites for the purposes of the marketing of the Book.

     17.      The Author grants to API of the right to use the Author's name, likeness and biography for the purposes of promoting and publishing the Book.

     18.     All other rights that are not expressly granted to API are reserved by the Author.

API Right to Reject the Book

     19.     API at its sole discretion can reject as unfit for publication any book or e-book they chose to. Although brief reasons will be given for their decision at the time, API is not obliged to have to justify their position to any potential author. Furthermore, API reserve the right to later remove any material that may 'slip through' their pre-publication checks that is later deemed to be illegal, libellous, defamatory, offensive, obscene, pornographic, or harmful in any respect.

Copyright and Other Rights

     20.     Although API is publishing the Book, the Author still retains copyright and all other rights to his or her intellectual work. The Author is perfectly free to publish the Book anywhere else at any time, even at the same time (although not by using API’s name, files or ISBN number).

     21.     Where API specifically lays the text out and/or formats the material for the author and/or creates cover images, in part or whole, these remain the property of API, and these text and/or cover files must not be used with another printer or publisher, in print or electronic form, without the express written permission of API. Where the author has created and formatted the files entirely themselves then they are perfectly free to use their own files with another printers or publishers albeit not by using API's name, ISBN number, or barcode inside or outside of the content.

     22.     If the Author chooses to 'retire' the Book from API, it will no longer be available to his or any third parties. API does not retain any residual rights to retired work except from the above mentioned. (API reserves the right not to retire a book where an unpaid balance on the author's account remains unsettled.)

Copyright Notice

     23.     API shall ensure that every copy of the Book published by them bear with due prominence:

a.     The Universal Copyright Convention copyright notice as follows: "All Rights Reserved. Copyright © [name of Author] 2010 (being the year of first publication)

b.   notice an assertion of the Author's moral right to be identified as the author of the Book, in the form: "The right of [name of Author] to be identified as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 sections 77 and 78"

Infringement of Copyright

     24.     If, during the continuance of this Agreement the Author considers that the copyright in the Book has been infringed; API shall have no liability to the Author if API elects, in its sole discretion, not to commence any action. If the API does not bring such an action, the Author may do so at the Author’s sole expense.

ISBN Numbers

     25.     By purchasing an ISBN Number from API, the Author is granting API the right to sell and distribute the Book internationally at the fulfilment rates and royalty rates as listed on the website.

     26.     The ISBN number purchased through API may not be used in promoting anything else other than the version of the Book as published and distributed by or through API. The unique ISBN number is not transferable to another publisher/printer/ebook site. Any such behaviour is illegal and serious breeches will result in API initiating criminal proceedings against the author.

     27.     If an ISBN has been purchased, the Author authorises API to send 2 copies (Only one copy is required for materials with a print run of less than 100, including Print-on-Demand) to the Library and Archives Canada (LAC) to fulfil statuary legal requirements. API will send these books on The Author’s behalf and The Author will be billed for them based on their print price plus postage and packing. There will be no payment or compensation from the LAC or API for these copies.

     28.     The author agrees not to interfere with API ISBN source data on any book data reports of any sort, including but not limited to Canadian Cataloguing in Publication (CIP). Any interference of any kind with the book's source data will be considered a serious breech of the author agreement.

Complimentary Copies

     29.     On publication of the Book, API shall send to the Author complimentary copies of the edition of the Book as specified on the website as “Free Author Copies”. The Author may purchase further copies of the Books at the Author discount price.

APH Bankruptcy

     30.     If API goes into bankruptcy, this Agreement will thereupon automatically terminate and all rights will revert back to the Author.

Selling the Book

     31.     API through the publishing service will make the Book available for retail sales to the public through book wholesalers within Canada, US, UK, Europe and Australia and the Internet. However, API is not responsible for marketing or advertising the book.

     32.     Although API will list the Book on Amazon and other websites and book data reports, API makes no guarantee with regards to the availability of the book or e-book through particular retail outlets or distributors at any given time or place. If Amazon or another site chooses not to list or withdraws the Book for whatever reason, API cannot be held liable.

     33.     The Author has agreed the recommended retail price in US dollars, Canadian dollars, UK pounds, Euro and Australian dollars and the same distribution discounts with API. However, API cannot guarantee the price any particular retailer or wholesaler choose to sell the Book at, or the discount levels available to retailers through the wholesalers. However, regardless of who or where to and at what price the book is actually sold at, the author will still receive the exact same royalty per sale as agreed with API for sales through the fulfilment/distribution service, except where specific agreements are made to the contrary.

Royalties

     34.     All royalties will be due to be paid no sooner than one quarter after the end of the month of the date of the first sale. If royalties due are less than $100 then the royalty balance will roll forward to the next month until either there is $100 or more due, or 6 months have passed since the month of sale in which case the royalty payment, regardless of the amount, will immediately be made. For Canadian authors, US/UK/Australia royalties will be converted to Canadian dollars at the exchange rate as determined by API’s distributors at the time of their paying API. This exchange rate is not negotiable.

     35.     The Author is responsible for declaring and paying his own Income Tax on all Royalties earned. API shall not be liable for all claims arising out of or relating to taxation of such royalties, including, but not limited to, payment thereof.

     36.     API reserves the right to contra author royalties from sales made to any outstanding balance remaining unpaid on the author's purchase account without consultation with the author.

Royalty Exceptions

     37.     No royalties shall be payable on copies of the published Book:

a.    presented to any person, including the Author and the press, free of charge;

b.   destroyed in circumstances beyond API's control;

c.    confiscated by reason of any lawful authority;

d.   purchased by the Author at the Author discount

Digital Catalogue Charge

     38.     After the first year, there will be a $20.00 file storage and maintenance charge that will be billed on an annual basis for the print version of the Book. This fee is only obligatory if the Author wishes to keep the title ‘live’ with us. If this fee is not paid promptly (notice will be given, please ensure to keep us up-to-date with contact details), then we reserve the right to pull the Book from our lists, and from our fulfilment service if applicable.

Limitation of Liability

     39.     The Author agrees that the liability of API, its employees and agents, if any, arising out of any kind of legal claim (whether in contract, tort or otherwise) connected with any transaction entered with API shall not exceed the amount the Author paid to API  in connection with the transaction giving rise to such a claim. API or its employees, agents or third-party licensors and content providers will not be liable to the Author or anyone else for any special, consequential, indirect, exemplary, cover, punitive, incidental or similar damages (including, without limitation, lost profits, lost sales, or lost business) directly or indirectly related to the Book.

Indemnity

     40.     The author agrees to indemnify API, its parent, subsidiaries, affiliates, and their respective officers, directors, employees and agents from and against any and all liabilities, expenses (including legal fees) and damages arising out of claims resulting from the author's use of our services, including without limitation claims arising out of content submitted to us by the author, the author's violation of a third party’s rights, or any claims alleging facts that if true would constitute a breach by the author of the terms and conditions of this agreement.

APH Right to Terminate

     41.     This Agreement is effective until terminated. API may terminate or suspend this Agreement immediately if in API’ sole judgment the Author breaches any of the terms and conditions of this Agreement. All provisions of this Agreement relating to payment, disclaimers, limitation of liability, indemnification, confidentiality, and proprietary rights shall survive termination or expiration of this Agreement.

     42.     Upon giving thirty (30) days advance written notice, API reserves the right, in its sole discretion, to terminate publication of the Book without cause, at which point all rights to the Book immediately revert to the Author.

     43.     API also reserves the right to terminate this Agreement and to discontinue publication/sale of the Book at any time, effective upon giving written notice to Author, if, in API’s judgment, the Book may subject API to the risk of litigation or other adverse commercial consequences. If such notice is given prior to publication of the Book by API, API will reimburse all amounts paid by the Author to API less any costs that have been involved in editing/formatting/designing the Book, and neither party will have any further obligations to the other except that the Author’s representations, warranties and indemnities set forth in Paragraphs 7 -14 and 39 shall survive the termination of this Agreement. API shall pay to the Author any accrued royalties on sales of the Book within three months after the Book has been discontinued.

Miscellaneous Matters

     44.     This Agreement is governed by the laws of Canada. Use of our services is unauthorised in any jurisdiction that does not give effect to all provisions of these terms and conditions.

     45.     As these are ‘print on demand’ books, and this contract is for an indefinite term, there will be times in the future where printing and shipping prices will rise with inflation and other factors beyond our control. Therefore, API reserves the right to alter fulfilment prices and author copy print prices in accordance with these inflationary and other factors at any time in the future without consultation with the author. The author will always be informed of changes in the fulfilment price.

     46.     In this Agreement, unless the context requires a different interpretation:

a.    references to the masculine gender include the feminine and references to the singular includes the plural and vice versa;

b.   the headings in this document are for reference only and shall not affect its interpretation; and

c.    references to a numbered paragraph is a reference to the paragraph bearing the corresponding number in this Agreement.

     47.     If any term in this Agreement is at any time held by any court or body of competent jurisdiction to be void, invalid or unenforceable, it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the applicable law and to prevent it from being void, and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as independent and severable from each other paragraph and therefore separately enforceable.

     48.     The following provisions apply in relation to the production PDF files created by API pursuant to this Agreement:

a.    The Author is not permitted to use the book proof PDF files that contain API’s imprint, API  contact details or ISBN number that was supplied by API for the purpose of enabling the Book to be printed by any third party printer that is not associated with API.

b.   If the Author wishes to have a copy of the book production PDF files for the purpose of enabling the book of the Book to be printed by a third party printer that is not associated with API, the Author will be required to pay to the API a small admin fee, to cover API’s costs of taking out the API's imprint, API contact details and ISBN information from the production files and sending the production files electronically or via post to the Author. API will not provide any support in respect of such production files supplied to the Author, which will be supplied as is and without any warranty.

Force Majeure 

     49.     Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control.

     50.     Each party shall be excused from performance and shall not be liable for any delay caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors or suppliers, except for obligations to make payments hereunder. These contingencies include, but are not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, labour disturbance or shortage, act of public enemy, failure or delay in transportation, act of any government affecting the terms hereof, accident, fire, explosion, flood, severe weather or other 'act of God'.

     51.     Each of the parties agrees to give written notice to the other upon becoming aware of being affected by an event of force majeure, such notice to contain details of the circumstances giving rise to it, and shall do all it reasonably can to resume full performance of its obligations under this Agreement as soon as possible.

Notices and Service 

     52.     Any notice, consent or other information required or authorised by this Agreement to be given by either party to the other may be given by hand or sent by first class pre-paid post, or by electronic means to the other party at the address provided for that type of communication.

     53.     Any notice, consent or information given by post shall be deemed to have been given on the second business day after it was posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid and posted, and that it has not been returned to the sender, shall be sufficient evidence that it has been duly given.

     54.     Any notice or other information sent by electronic means shall be deemed to have been duly sent on the date of transmission, provided that the sender does not receive notice of failure of delivery of such transmission.

     55.     Service of any legal proceedings concerning or arising out of this Agreement shall be effected by causing the same to be delivered to the party to be served at his main place of business or its registered office, or to such other address as may from time to time be notified in writing by the party concerned.

Dispute Resolution  

     56.     If either party is of the opinion that the other party to this Agreement is in breach of any material condition or obligation pursuant to this Agreement (including, without limitation, any obligation to pay money), then the parties shall use all reasonable endeavours to resolve the matter to their mutual satisfaction by means of the dispute resolution procedure set out in paragraphs 56 and 57 below.

     57.     The parties shall endeavour in good faith to resolve any dispute or claim in relation to this Agreement by means of good faith negotiations, which shall take place directly between API and the Author. If the dispute is not resolved within 6 weeks from commencement of good faith negotiations, the parties shall endeavour in good faith to resolve the dispute through an alternative dispute resolution procedure carried out in accordance with the recommendations of the CDRC (Canadian Dispute Resolution Co.), and both parties agree to cooperate fully with the CDRC for these purposes.

     58.     All negotiations in relation to the matters in dispute shall be strictly confidential and shall be without prejudice to the rights of the parties in any future legal proceedings. If the parties fail to reach an agreement which finally resolves all matters in dispute within 60 days of having commenced negotiations pursuant to the alternative dispute resolution procedure, or if such negotiations fail to take place, then either party shall be entitled:

a.     to refer the matter to a single arbiter agreed upon by both parties, whose decision shall be final and binding on the parties; or

b.   to seek such legal remedies as may be appropriate.

Successors and Assigns   

     59.     The Author shall not assign his obligations under, nor the benefit of, this Agreement, without the prior written consent of API.

     60.     APH shall be entitled to assign the benefit of and his obligations under this Agreement to any company or other third-party that acquires the whole or any substantial part of API’s business or undertaking.

     61.     The obligations under this Agreement shall be binding upon the personal representatives and permitted assigns of the Author and upon the assigns and successors in business of API.

Jurisdiction   

     62.     This Agreement shall be interpreted according to the Laws of Canada and, subject to Paragraphs 55 - 57, the parties agree to submit to the exclusive jurisdiction of Canada courts.

Third Parties    

     63.     Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act by any third party.

Entire Understanding of Agreement

     64.     This agreement constitutes the entire agreement between the author and API with respect to the use of their self-publishing services and it supersedes all prior and contemporaneous agreements or arrangements between the author and API. Each party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other term not forming part of this Agreement.

 

 

Achievers Publishing Inc reserves to itself any rights not expressly granted herein.