Terms & Conditions
DIGITAL PUBLISHING AGREEMENT
(“the Content Producer” or “the Author”)
BOOKBEAK (PTY) LIMITED
TABLE OF CONTENTS
- SALE OF THE BUSINESS
- CONDITION PRECEDENT
- PURCHASE PRICE AND PAYMENT THEREOF
- CESSION AND DELEGATION OF CONTRACTS
- FINANCIAL LEASES
- DELEGATION OF LIABILITIES
- WARRANTIES AND INDEMNITIES
- EMPLOYEES AND PENSION FUND
- SECTION 34 NOTICES
- SUNDRY PROVISIONS
- USE OF TELEPHONE, FACSIMILE, & POST OFFICE BOX LINES AND NUMBERS
- BREACH BY THE PARTIES
- NOTICES AND DOMICILIUM
- WHOLE AGREEMENT
- WARRANTY OF AUTHORITY
- CO-OPERATION AND IMPLEMENTATION
- INDIVISIBLE TRANSACTION
- PARTIES NOT AFFECTED BY WAIVER OF BREACHES ETC
- 2.1. In this agreement, unless clearly inconsistent with or otherwise indicated by the context :-
- 2.1.1 “the/this agreement” means the agreement set out in this document;
- 2.1.2 “Author” means_______with identity number ______, whom is the writer of short stories and a supplier to the Publisher;
- 2.1.3 “business” means, the business of the Publisher (which operates under the name and style of Bookbeak _______ and is comprised of rights, assets and liabilities) being an application based publishing medium or platform for Authors of African short stories seeking market exposure and the means to generate revenue from their body of works as well as the marketing of BookBeak as a stand-alone platform holding such content and the striking of distribution deals where the Publisher white-labels its platform to corporate clients with content hubs for their customer base to access and download the Author’s content;
- 2.1.4 “the excluded items” means any rights or claims insofar as any publication of the content producer’s material is concerned that does not constitute digital publication;
- 2.1.5 “the goodwill” means the goodwill of the business;
- 2.1.6 “the intangible assets” means the registered and other intangible property (whether registered or not) as defined in the Trade Marks, Design, Patent and Copyright Acts of the Republic of South Africa, and all other property of a similar nature including, without limiting the generality hereof, the trade marks, trade names and industry know-how;
- 2.1.7 “the Publisher” meansBookbeak (Pty) Limited a Private Company duly registered and incorporated in accordance with the company laws of the Republic of South Africa with Registration number being xxxxxxx, herein represented by xxxxxxxx he being duly Authorised thereto under and by virtue of a resolution of the directors of the company/by virtue of the fact that he is the sole director of Publisher and is the commissioner of the works from the Author;
- 2.1.8 “the parties” means the Publisher and the Author and “party” means either one of them as the context may indicate;
- 2.1.9 “the signature date” means the date of signature hereof by the last party to sign this agreement;
- 2.1.10 “stock” means all content produced by the Author over the duration of this agreement and in respect of which the Publisher has first right of refusal insofar as the first-to-market digital publication of such content is concerned;
- 2.1.11 “stock calculation date” means the date upon which this agreement is signed;
- 2.1.12 “Tax” means all income tax, capital gains tax, secondary tax on companies, dividend tax, VAT, uncertificated securities tax, PAYE, levies, assessments, imposts, deductions, charges and withholdings whatsoever in terms of any Tax legislation;
- 2.1.13 “VAT” means the value added tax as levied from time to time in terms of the VAT Act;
- 2.1.14 “VAT Act” means the Value Added Tax Act, Act No 89 of 1991, as amended;
- 2.1.15 any reference to the singular includes the plural and vice versa;
- 2.1.16 any reference to natural persons includes legal Persons and vice versa;
- 2.1.17 any reference to a gender includes the other genders.
- 2.2 When any number of days is prescribed in this agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day does not fall on a business day, in which case the last day shall be the next succeeding business day;
- 2.3 Reference to "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
- 2.4 If any provision in 2.1 is a substantive provision conferring rights
or imposing obligations on anyone, effect shall be given to it as if it were a substantive provision in the body of this agreement;
- 2.5 Any word or phrase defined in the body of this agreement as opposed to being defined in 2.1 shall have the meaning assigned to it in such definition throughout this agreement, unless the contrary clearly appears from the context;
- 2.6 The annexures to this agreement shall be deemed to be incorporated in and form an integral part of this agreement;
- 2.7 If figures are referred to in numerals and in words and if there is any conflict between the two, the words shall prevail;
- 2.8 Any word or phrase defined in the body of this agreement as opposed to being defined in 2.1 shall have the meaning assigned to it in such definition throughout this agreement, unless the contrary clearly appears from the context;
- 2.9 The use of the word “including” followed by a specific example in this agreement shall not be construed as limiting the meaning of the general wording preceding it;
- 2.10 Any reference to any statute in this agreement shall be deemed to be a reference to that statute as at the signature date, and as amended or re enacted from time to time thereafter;
- 2.11 The rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply;
- 2.12 The expiration or termination of this agreement shall not affect such of the provisions of this agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
- 2.13 This agreement shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa.
The Publisher wishes to obtain the sole and exclusive rights to publish or to licence the content producer’s workfor publication digitally in South Africa and any other foreign country. The Content Producer intends to grant and assign to the Publisher, its successors-in-title, duly Authorised representatives and assigns the aforesaid rights to publish their works on the Publisher’s digital platform on the terms set out in this agreement.
GRANTING OF EXCLUSIVE RIGHTS
- 4.1 The Content Producer grants and assigns the sole and exclusive rights to the Publisher to digitally publish all of their works on the Publisher’s platform, the Publisher of which accepts such rights upon and subject to the terms, conditions, warranties and indemnities herein contained, with effect from the signature date, on which date all rights attaching to or ensuing from the online publication of the Author’s works shall be deemed to have passed to the Publisher.
- 4.2 The parties, in regard to the granting of the sole and exclusive rights, record that as:-
- 4.2.1 the Publisher and the Authoras at the signature date are both not Vendors as defined in the VAT Act that VAT considerations will not be included in the revenue sharing agreement set out below;
- 4.2.2 any sales resulting from the business will be chargeable with VAT at the rate of 0% (zero percent) in terms of section 11(1)(e) of the VAT Act; [Please amend as necessary]
- 4.2.3 the assets comprising the business constitute such assets as are necessary for the carrying on of the business;
- 4.2.4 as at the signature date the business will be an income earning entity.
- 4.3 Notwithstanding the parties understanding and belief that VAT will be levied at the rate of zero percent should VAT be levied at a rate other than 0% (zero percent), the Seller shall be entitled to immediately recover such VAT from the Purchaser against delivery of such documentation required in terms of the VAT Act which will permit a Purchaser duly registered as a Vendor for VAT purposes to claim a deduction in respect thereof in terms of the said Act.
[DRAFTING NOTE: CLIENT INSTRUCTIONS REQUIRED]
- 5.1 The agreement is subject to the fulfilment of the following conditions precedent being that:-
- 5.1.1 The non-disclosure agreement be signed by the Author, as well as their agent and an original copy thereof be furnished to the Publisher;
- 5.1.2 A list of the Author’s works to date and intended works be furnished to the Publisher;
- 5.13. Disclosure of any discussions/agreements signed with other publishers, particularly in the digital space;
- 5.1.4 The Author shall execute and deliver any and alldocuments which the Publisher reasonably deems necessary or appropriate to evidence oreffectuate the rights granted in this agreement, which includes:
(DRAFTING NOTE: To be discussed)
- 5.2 The Author shall use their best endeavours to procure the fulfilment of the condition precedent.
- 5.3 If the condition precedent referred to in clauses 5.1 is not fulfilled by the signature date then this agreement shall be of no further force or effect and:
- 5.3.1 save to the extent that any party may have any recourse by reason of the binding clauses, no party hereto shall have any claim against the other arising out of or in connection with this agreement; and
- 5.3.2 to the extent that this agreement may have been partially implemented, the parties shall be restored to their status quo ante.
REVENUE SHARING AND PAYMENT THEREOF
- 6.1 The revenue generated from the purchase of the Author’s books on the Publisher’s platform shall be determined by the agreement between the Author and the Publisher recorded hereunder.
- 6.2 After consultation with the Author, the Publisher shall have the right, but not the obligation, to publish and re-publish the Work at its own expense in suchformat and style, cover or covers, manner, and advertisement, and at such price, as it deems suitable except that the initial publication shall be with a title and price agreed to by the parties in writing.
(DRAFTING NOTE: To be discussed).
- 6.3 The revenue shared with the Author is in direct proportion to the number of downloads/purchases their individual pieces of content generates on/through the Publisher’s platform.
- 6.4 The revenue generated, which forms the income of the Publisher and the Author will be determined using the following formula:
Sale price of book as reflected on the platform – xxxxxxxxx = revenue.
- 6.5 The parties agree to the following revenue-sharing percentages:
- 6.4.1Publisher: 60%
- 6.4.2 Author: 40%
- 6.6 The revenue will be paid to the content producer on a monthly basisin arrears along with an analytics report.
- 6.7 If any suit as set out in paragraph ____ below is instituted, the Publisher shall promptly notify the Author and may withhold payments due to the Author under this agreement, until such suit has been settled or withdrawn. If a final adverse judgment is rendered and isnot discharged by the Author, the Publisher may apply the payments so withheld to the satisfaction of such judgment.
- 6.8 In instances where the Publisher leases out content to a third party the revenue generated from that endeavour shall be paid to content producers in the payment cycles determined by that third party.
CONDUCT OF THE BUSINESS BETWEEN THE EFFECTIVE DATE AND THE CLOSING DATE AND DELIVERY
- 7.1 On the signature date:-
- 7.1.1 the Author shall place the Publisher in possession of all ofthe Author’s content;
- 7.1.2 the Author shall place the Publisher in possession of:-
- 126.96.36.199 all promotional material, sales publications, advertising materials, and other technical material and sales matter which relate to the content;
- 188.8.131.52 all records of sales and marketing campaigns related to the Author’s work engaged in to date which includes all book signings, awards, conferences or other exposure associated with the works or the Author themselves.
- 7.1.3 the Author shall deliver to the Publisher such documents, duly completed, as may be necessary, to cede/transfer the aforementioned rightsto the Publisher.
- 7.2 All profits earned by the business after the signature date shall be the sole and exclusive property of the Publisher and losses incurred shall be borne by the Publisher and all liabilities incurred after the signature date shall be deemed to be for the account of the Publisher.
- 7.3 The parties agree to give each other as well as their respective representatives access at all reasonable times to the platform and/or the content and its associated documents.
- 7.4 The Author indemnifies the Publisher against all loss, liability, damage or expense (whether actual, contingent or otherwise) which the Publisher may suffer as a result of, or which may be attributable to, any liability of the Author arising from or out of the conduct/any actions of the Author after the signature date which directly or indirectly impacts upon the business and/or its reputation.
- 7.5 The parties agree that:-
- 7.5.1 Immediately after the signature date, the representatives of the Publisher and the Author shall meet to finalise the stock list of the Author;
- 7.5.2 The parties undertake to take whatever steps may be required for the purpose of determining and approving the quantity and valuation of stock including, without limitation, a market valuation using other relevant authors in the industry as a benchmark.
7.6 Should any dispute arise between the parties as to the quantity or value of any stock, then:-
- 7.6.1 the parties shall forthwith consult with each other and an expert agreed to between the parties to resolve their difference or dispute;
- 7.6.2 failing mutual agreement between the parties, within three calendar days after the date upon which either the Publisher notifies the Author or vice versa, as the case may be, in writing that a difference exists between them regarding the calculation of the value of the stock, that difference or dispute shall, at the request of any party to the dispute, be submitted for determination to, and be decided on by the chairman of the (Publishing industry body) ("the expert"), who shall:-
- 184.108.40.206 act as an expert and not as an arbitrator;
- 220.127.116.11 hear the matter informally and as soon as possible;
- 18.104.22.168 give a ruling as soon as possible;
- 22.214.171.124 not be bound by any rules of procedure or evidence; and
- 126.96.36.199 be obliged to call upon the parties to furnish him with their respective written submissions, which written submissions must be delivered to the expert within seven days after he has requested such submissions, provided that the expert shall be entitled to make his determination after the seven day period whether or not such submissions were submitted to him and whose decision shall be final and binding, save for manifest error, on the parties.
WARRANTIES AND INDEMNITIES
- 8.1 The parties hereby indemnify each other against all claims, of whatsoever nature, which may be made against the other in respect of the liabilities arising out of the conduct of the defaulting party which contravenes the terms of this agreement and which is wholly unreasonable and/or in bad faith. To the extent that either party fails to comply with their respective obligations as set out in this clause, then the aggrieved party may, at itselection and without detracting from any of its rights in terms of this agreement or in law, effect payment of the said unpaid liability/ies and immediately recover the same from the defaulting party.
- 8.2 The Author hereby gives the warranties and undertakings ("warranty" or "warranties") and makes the representations to and in favour of the Publisher on the following basis :-
- 8.2.1 the warranties shall be deemed to be representations and undertakings by the Author in favour of the Purchaser;
- 8.2.2 each warranty shall conclusively be deemed to be a representation of fact which induced the Publisher to enter into this agreement unless the contrary is proved;
- 8.2.3 each warranty shall be presumed to be material unless the contrary is proved;
- 8.2.4 insofar as any of the warranties are promissory or relate to a future event, they shall be deemed to have been given as at the due date for fulfilment of the promise or the happening of the event, as the case may be;
- 8.2.5 each warranty shall be a separate warranty and in no way limited or restricted by reference to, or inference from, the terms of any other warranty;
- 8.2.6 each warranty is given as at the date stated in such warranty and failing any specific date then such warranty shall be deemed to have been given as at the signature date.
- 8.3 Author’s Warranties
The warranties and undertakings given by the Author to the Publisher are the following:-
- 8.3.1 Warranties relating to the business
- 188.8.131.52 the Publisher will, as at the effective date, be the owner of and will have the absolute right to deal with the content in accordance with the provisions of this agreement. The Author is entitled and able to give free and unencumbered rights to the Publisher in this regard;
- 184.108.40.206 as at the signature date the Author is not engaged in any litigation or arbitration in relation to its works nor is the Author aware of any circumstances which are likely to give rise to any such future litigation or arbitration;
- 220.127.116.11 the Author is as at the signature date in a position to give transfer the rights to the Publisher as envisaged in terms of this agreement;
- 18.104.22.168 all information relating to the works, as provided to the Publisher, is true and correct;
- 22.214.171.124 the Author has not engaged with any other digital publishing operator at any time;
- 126.96.36.199 the Author will engage in the marketing of the Publisher’s platform and its associated content upon request from the Publisher;
- 188.8.131.52 The Author is the sole Author and proprietor of the Work; that the Work has not heretofore been published in book form; that she is the owner of all the rights granted to the Publisher, and has full power to enter into this agreement, and that said rights are not subject to any proper agreement, lien, or other claim or rights which may interfere with the rights herein granted; that the Work is original and not in the public domain; that it does not violate the right of privacy of any person; that it contains no libellous, obscene, or other unlawful matter; and that it does not infringe upon the copyright or violate any other right of any person or party.
- 8.4 The Author undertakes for herself, her successors and assigns, to execute at any time, on request of the Publisher, any document or documents to confirm orcontinue any of the rights defined herein, and to take all proceedings necessary to enforce copyright in South Africa and elsewhere.
- 8.5 If the Author unreasonably disapproves of any out-of-court settlement recommended by the Publisher and the claim or suit proceeds to trial, the Author shall be liable for all the Publisher's fees, costs, damages, and expenses connected with such trial regardless of outcome.
- 8.6 The Publisher shall have the right toreasonably extend the benefit of the indemnities to any person, firm, or corporation at any time, and the Author shall be liable thereon as if Author's warranties were originally made to such person, firm, or corporation.
- 8.7 The Publisher’s rights, duties and obligations:
- 8.7.1 After consultation with the Author, the Publisher shall have the right, but not the obligation, to publish and re-publish the Work at its own expense in suchformat and style, cover or covers, manner, and advertisement, and at such price, as it deems suitable except that the initial publication shall be with a title and price agreed to by the parties in writing;
- 8.7.2 If the Publisher wishes to make editorial changes or deletions in the Work manuscript, it shall consult with the Author prior to publication about these changes, and if the Author and Publisher cannot agree on the changes or deletions, the issues at question shall be decided upon by a mutually chosen third party. ThePublisher reserves the right to reject the Work for any reason;
- 8.7.3 The Publisher agrees to publish the Work within eighteen (18) months from the date of this contract. In case of delays from causes beyond the control of the Publisher, or in case the Author fails to return proofs within ten (10) days after they have been delivered to her, the period shall be extended to cover such delays. Should the Publisher fail to publish the Work before the expiration of said period, except as provided herein, its failure to do so shall be deemed cause for the Author, if he so desires, to terminate this Agreement.
- 8.7.4 Save as set out in this agreement, the Publisher has made and given no representations or warranties, whether express or implied, in respect of the business.
- 8.8.1 The Publisher indemnifies the Authoragainst:-
- 184.108.40.206 any breach of the warranties which leads to a loss or damage or expense to the Author; and
- 220.127.116.11 any liabilities other than the liabilities as defined above.
- 8.9 The Author hereby indemnifies the Publisher against all and any claims and or liabilities which were incurred after the signature date by the Author or for which the Author is liable.
- 9.1 Announcements
- 9.1.1 Neither of the parties shall publish any announcement of this transaction through any of the media until the other of them will have approved the proposed announcement; provided that such approval may not be unreasonably withheld;
- 9.1.2 These provisions shall not apply to a public announcement, or releases of information which either party is required to make in order to comply with the statutory obligation or the requirements of a competent governmental Authority.
- 9.2 Implementation and Good Faith
For the duration of this agreement and thereafter:-
- 9.2.1 the parties undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things, and the performance of all such acts, as may be necessary or incidental to give effect to the terms, conditions and import of this agreement; and
- 9.2.2 the parties shall observe the principles of good faith towards one another in the performance of their obligations in terms of this agreement.
BREACH BY THE PARTIES
- 10.1 In the event that either party (“the guilty party”) breaches any obligation owed by it to the other (“the innocent party”), the innocent party shall be obliged (where it wishes to exercise any rights consequent upon such breach) to give notice of such breach to the guilty party.
- 10.2 Such notice shall be in terms of this agreement.
- 10.3 The notice shall draw attention to the breach and call upon the guilty party to remedy such breach within 14 (fourteen) days of the giving of such notice failing which the innocent party shall be entitled to either compel performance from the guilty party of its obligations, or cancel this agreement, or to claim such other rights as it may have against the guilty party, whether at common law or in terms of this agreement.
- 10.4 In the event that guilty party breaches any obligation (as referred to above) and rectifies same within 14 (fourteen) days of receipt of the requisite notice but proceeds to commit a further two breaches arising out of the same cause as the first breach within 2 (two) months of the first breach, then the innocent party shall not be obliged to give such notice of any subsequent breach prior to exercising its rights.
- 11.1 Save as specifically provided to the contrary in this agreement, any disputes arising from or in connection with this agreement or the termination thereof shall, at the request of any party to the dispute, be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (or its successor in title) ("AFSA") by an arbitrator or arbitrators appointed by AFSA.
- 11.2 Notwithstanding anything to the contrary contained in this clause 18, any party shall be entitled to apply for, and if successful, be granted, an interdict from any competent court having jurisdiction.
- 11.3 For the purposes of clause 18.2 and for the purposes of having any award made by the arbitrator/s being made an order of court, each of the parties hereby submits itself to the non-exclusive jurisdiction of the South Gauteng High Court of South Africa.
- 11.4 This clause 18 is severable from the rest of this agreement and shall remain in full force and effect notwithstanding the termination of this agreement.
NOTICES AND DOMICILIUM
- 19.1 The parties choose as their domiciliumcitandi et executandi their respective addresses set out in this clause for all purposes arising out of or in connection with this agreement at which addresses all the processes and notices arising out of or in connection with this agreement, its breach or termination may validly be served upon or delivered to the parties.
- 19.2 For the purpose of this agreement the parties' respective addresses shall be:-
- 19.2.1 The Publisher
- Fax: 19.2.2 The Author
- Fax: or at such other address in the Republic of South Africa, not being a post office box or poste restante, of which the party concerned may notify the others in writing.
- 19.3 Any notice given in terms of this agreement shall be in writing and shall :-
- 19.3.1 if delivered by hand be deemed to have been duly received by the addressee on the date of delivery;
- 19.3.2 if posted by prepaid registered post be deemed to have been received by the addressee on the 8th (eighth) business day following the date of such posting;
- 19.4 Notwithstanding anything to the contrary contained in this agreement, a written notice or communication actually received by one of the parties from another including by way of facsimile transmission shall be adequate written notice or communication to such party.
This agreement constitutes the whole agreement between the parties as to the subject-matter hereof and no agreement, representations or warranties between the parties other than those set out herein are binding on the parties.
WARRANTY OF AUTHORITY
Each party warrants to the other parties that it has the power, Authority and legal right to sign and perform in terms of this agreement and that this agreement has been duly Authorised by all necessary actions of its directors and members and constitutes valid and binding obligations on it in accordance with the terms of this agreement.
No addition variation, consensus cancellation or novation of this agreement and no waiver of any rights arising from this agreement or their breach or termination shall be of any force or effect unless reduced to writing and signed by all the parties or their duly Authorised representatives.
No relaxation or any other indulgence which may be given or allowed by any party to the agreement in respect of the performance of any obligation hereunder, or the enforcement of any right arising from this agreement shall be construed as a waiver of such parties rights arising from the agreement.
CO-OPERATION AND IMPLEMENTATION
Each of the parties to this agreement hereby agrees and undertakes, as a stipulation in favour of the other party, that it will co-operate with the other party in such manner as may be necessary in order to procure the expeditious implementation of this agreement.
PARTIES NOT AFFECTED BY WAIVER OF BREACHES ETC
- 26.1 The waiver (whether express or implied) by any of the parties of any breach of any of the terms or conditions of this agreement by any other of the parties shall not prejudice any remedy of the waiving party in respect of any continuing or other breach of the terms and conditions hereof.
- 26.2 No favour, delay, relaxation or indulgence on the part of any of the parties in exercising any power or rights conferred on any such party in terms of this agreement shall operate as a waiver of such power or rights or as a novation hereof; nor shall any single or partial exercise of any such power or right preclude any other or further exercises thereof or the exercise of any power or right under this agreement.
- 26.3 The expiry or termination of this agreement shall not prejudice the rights of any party in respect of any antecedent breach or non-performance by any of the other parties or any of the terms or conditions hereof.
The parties will be responsible for their own costs in negotiating and drafting of the agreements.