OCTAVO TERMS AND CONDITIONS
The Contract is made between you, the author (“Author”) and Octavo Publishing Limited (Company Number 10015842) of Octavo House, West Bute Street, Cardiff, Wales, CF10 5LJ (“Company”). You have instructed the Company to provide you with the Project on the Conditions agreed as follows:-
Bespoke Package: means a bespoke service to be provided to the Author in accordance with clause 3.2.
Bespoke Quote: means the quotation provided by the Company to the Author which is annexed to these Conditions setting out the Bespoke Package to be provided by the Company to the Author.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Company Materials: means any software or materials used by the Company in order to provide the Project.
Company’s Website: means www.octavopublishing.com or any other website or social media page operated by the Company or the Group.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.6.
Contract: the contract between the Company and the Author for the supply of the Project in accordance with these Conditions.
Distribution Channels: means any physical, online and electronic distribution channels used by the Company from time to time in their absolute discretion, but by way of an example (and subject to change) includes Macmillan (MDL); Kindle; iTunes; Google; Nook and Kobo.
Distribution Services: the sale and distribution by the Company in accordance with the Purchase Order Form and these Conditions.
Fees: together the Publishing Fees and the Distribution Fees.
Group: the Company, its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time.
Holding: has the meaning given in clause 1.2(b).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Net Receipts: means the amount received by the Company from the Distribution Channels following the sale of the Work less any fees and charges, including without limitation, distribution fees and transmission fees.
Order: the Author’s order for the Project purchased via the Company’s Website or according to the Bespoke Quote if applicable.
Publishing Fees: means the Company’s fee for the Bespoke Package or the Standard Package as set out in the Purchase Order Form (or the Bespoke Order Form if applicable) and payable by the Author in accordance with clause 9.
Publishing and Marketing Services: the publishing and marketing of the Author’s Work by the Company as set out in the Purchase Order Form as a Standard Package on the Company’s Website or the Bespoke Quote if applicable.
Purchase Order Form: means either the final purchase confirmation page contained on the Company’s Website detailing the Standard Package which the Author has selected or the form annexed to these Conditions (as updated from time to time) setting out the specific services to be provided by the Company.
Project: means the Publishing and Marketing Services and the Distribution Services.
Standard Packages: means the Bronze, Silver, Gold and Platinum publishing packages detailing the Publishing and Marketing Services as set out on the Purchase Order Form.
Subsidiary: has the meaning given in clause 1.2(b).
Term: means the duration of the Contract as set out in clause 4.2.
Third Parties: means both the Company and Group’s officers, members, employees, agents and consultants along with any third party publishers, Distribution Channels, agencies, retailers, buyers and suppliers for which the Company in its sole discretion contract with from time to time.
Work: means the material provided by the Author to be published by the Company under either the Standard Packages or a Bespoke Package as set out the Purchase Order Form and in accordance with these Conditions.
(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) A reference to a Holding Company or a Subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) as a nominee.
(c) Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(d) If the Work is of a joint nature or collaboration, the term Author throughout this Contract will be deemed to mean all such Authors. The Authors, if more than one, shall be jointly and severally liable for each other’s actions and obligations pursuant to this Contract.
(e) A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Author to purchase the Project from the Company in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Company issues acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained on the Company’s Website or in the Company’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Project described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Author seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF PUBLISHING AND MARKETING SERVICES
3.1 The Company shall supply the Standard Packages to the Author in accordance with the Purchase Order Form in all material respects.
3.2 Where the Author opts for a Bespoke Package, they shall be required to provide by way any details and information required by the Company and upon receipt, the Company shall provide the Bespoke Quote. The Bespoke Quote shall however not constitute an offer and is only valid for a period of 20 Business Days from its date of issue. The Company shall supply the Bespoke Packages to the Author in accordance with the Bespoke Quote in all material respects.
4. DISTRIBUTION SERVICES
4.1 In addition to the Publishing and Marketing Services, the Company shall make reasonable endeavours to make the Work available for sale and purchase through their Distribution Channels throughout the Term. For the avoidance of doubt however, the Company shall not be in breach of this clause if the Distribution Channels do not accept the Work.
4.2 Unless terminated earlier by the Company pursuant to clause 16, the Contract (and therefore the Distribution Services) shall continue for an initial 12 months from the Commencement Date (Initial Term) and shall automatically extend for a further 12 months (Extended Term) at the end of the Initial Term and at the end of each Extended Term thereafter. Either party may give written notice to the other not later than 3 months before the end of the Initial Term or the relevant Extended Term, to terminate this Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
4.3 The Company shall during the Term:
(a) use reasonable endeavours to promote the distribution and sale of the Work; and
(b) submit sales statistics each quarter to the Author, showing details of sales during the previous period.
4.4 The Company shall not without the Author’s consent (which shall not be unreasonably withheld or delayed) sell copies of the Work which it knows are to be given away free of charge with goods or services.
5. AUTHOR’S OBLIGATIONS
5.1 The Author shall:
(a) ensure that the terms of the Order and any information provided for in the Purchase Order Form (or the Bespoke Quote if applicable) are complete and accurate;
(b) produce the Work and deliver it to the Company by way of an electronic copy of the Work in Microsoft Word format (or any other format as agreed in writing by the Company), ensuring that this does not contain any virus or other material likely to cause technological harm;
(c) provide the Company, if required, with an index for the Work;
(d) provide the Company with original artwork for the Work by way of a digital image of sufficient pixel dimensions to be able to deliver 300 pixels per inch;
(e) co-operate with the Company and any Third Parties in all matters relating to the Project in order to ensure its success;
(f) throughout the duration of the Term, inform the Company in writing of any other sellers or distributors of the Work and provide the Company, if required, with copies of any agreements or terms and conditions duly entered into with any such third party sellers or distributors;
(g) in addition to those materials requested, provide the Company with all other information and materials as the Company may reasonably require in order to supply the Project, and ensure that such information is accurate in all material respects;
(h) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Project are to start;
(i) comply with any additional obligations as set out in the Purchase Order Form (or the Bespoke Quote if applicable).
5.2 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Author or failure by the Author to perform any relevant obligation (Author Default):
(a) the Company shall without limiting its other rights or remedies have the right to suspend performance of the Project until the Author remedies the Author Default, and to rely on the Author Default to relieve it from the performance of any of its obligations to the extent the Author Default prevents or delays the Company’s performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Author arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
(c) the Author shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Author Default.
6. THE COMPANY’S RIGHTS
6.1 The Author hereby grants to the Company for the Term:
(a) a transferable, worldwide licence to publish, promote, market, advertise, promote, sell and distribute the Work;
(b) the right to produce, publish, store, host, copy, reproduce, transmit, distribute and use the Work, in whole or in part, whether that be tangible or electronic copies, in order to carry out the Project and fulfil the Contract (and the Author accepts that such rights granted shall extend to any Third Parties instructed by the Company);
(c) the right to use, display and exhibit in any and all medium (including all electronic and print medium) on the Company’s Website (or elsewhere in the sole discretion of the Company) any material which may assist the Company promote and market the Work or the Company’s own services and products including but not limited to:
(i) the Work itself;
(ii) extracts from the Work;
(iii) a summary of the Work;
(iv) the title of the Work;
(v) the name and information regarding the Author;
and the Author accepts that such rights granted shall extend to any Third Parties instructed by the Company.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Notwithstanding the rights granted to the Company pursuant to clause 6, the Author shall retain all copyright and other rights in the Work and all versions of it created during the Company’s editing process (including the published version of it) throughout the world.
7.2 Each published copy of the Work in any format shall carry on its first page a copyright notice in the following form:
© [NAME OF AUTHOR] [YEAR OF FIRST PUBLICATION]
7.3 The Author hereby grants to the Company the right by way of licence to produce print and publish the Work.
7.4 Author acknowledges that, in respect of any third party Intellectual Property Rights, the Author’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Author.
7.5 The Author shall have a duty to notify the Company of any infringement or suspected infringement of the Author’s Intellectual Property Rights or any third party’s Intellectual Property Rights.
7.6 The Author acknowledges that they shall solely be responsible for dealing with any infringement notices in the event that they or the Company discover that another seller or distributor is selling the Work without the Author’s permission.
7.7 All Company Materials are the exclusive property of the Company.
8. USE OF SUB-CONTRACTORS
The Company is permitted in their absolute discretion to use other persons and Third Parties to provide some or all of the Project.
9. PUBLISHING FEES AND PAYMENT
9.1 In addition to any ongoing Distribution Fees payable to the Company pursuant to clause 10, the Publishing Fees for the Standard Packages are set out in the Purchase Order Form and shall be payable by the Author on the Commencement Date.
9.2 If the Author opts for a Bespoke Package, the Publishing Fees for the Bespoke Package shall be payable by the Author on the following basis:
(a) 50% of the Publishing Fees shall be payable by the Author on the Commencement Date; and
(b) The remaining 50% of the Publishing Fees shall become payable by the Author once the Work has been used by the Company to create a print-ready file and, for the avoidance of doubt, the Company shall not submit the print-ready file to the printer until the final payment pursuant to this clause 9.2(b) is received.
10. SALE PROCEEDS AND DISTRIBUTION FEES
10.1 The Company shall pay to the Author an amount equal to 75% of the Net Receipts (Sale Proceeds) for each Work sold in accordance with this clause 10.
10.2 In addition to the Publishing Fees, the Author hereby agrees that the Company shall be entitled to deduct an amount equal to 25% of the Net Receipts (Distribution Fees) in consideration for the Distribution Services provided by the Company.
10.3 All sums due to the Author under this agreement are exclusive of VAT. Unless and until the Author has supplied any applicable VAT registration number, the Company shall be under no obligation to pay VAT on any amounts payable under this agreement.
10.4 The Sale Proceeds payable by the Company pursuant to clause 10.1 shall be paid to the Author on or within 60 days of the end of each quarter. Where monies due are less than £20 (twenty pounds) a statement will be sent but the amount due will be carried forward to the next quarter.
10.5 The Sale Proceeds and any other sums payable to the Author under the Contract shall be paid in sterling to the credit of a bank account to be designated in writing by the Author.
10.6 The Company shall be entitled to suspend payment of any Sale Proceeds if it becomes aware of any complaint or claim relating to the Work, until such complaint or claim has been settled to the satisfaction of the Company and its insurer.
10.7 All sums payable under the Contract shall be paid subject to deductions and withholdings required by law.
11.1 In the event that the Author fails to make any payment due to the Company under the Contract by the due date for payment, then the Author shall pay interest on the overdue amount at the rate of 4% per cent per annum above Barclays Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Author shall pay the interest together with the overdue amount.
12. LITHOGRAPHIC AND EDITING SERVICES
12.1 Unless the Author orders a Bespoke Package which includes lithographic or editing services, the Company will not carry out any editing or lithographic printing services.
12.2 In the event that a Bespoke Package including editing services is purchased, the Author shall retain final approval with regards to all suggested editing changes proposed by the Company.
13. AUTHOR’S WARRANTIES
13.1 The Author warrants that:
(a) the Work is the Author’s original work and is not be copied wholly or substantially from any other work or material or any other source;
(b) the Author is the sole creator of the Work and the legal and beneficial owner of all rights in the Work;
(c) the Author is a qualifying person under section 154 of the Copyright, Designs and Patents Act 1988;
(d) the Author has not assigned or licensed and will not during the Term purport to assign or license any of the rights granted to the Company under this agreement, and no previous version of the Work has previously been published;
(e) the rights granted by this agreement are free from any security interest, option, mortgage, charge or lien;
(f) as far as the Author is aware, the exploitation of the rights granted by this agreement has not infringed, and will not infringe, the rights of any third party; and
(g) the Work does not contain anything that is defamatory, unlawful in any way or includes statements purporting to be facts that, if followed accurately (including but not limited to recipes, formulas or instructions) may cause injury, illness or damage to the reader.
14.1 The Author shall indemnify and hold the Company harmless against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with any breach of the warranties in clause 13 above. At the request of the Company and at the Author’s own expense, it shall provide all reasonable assistance to enable the Company to resist any claim, action or proceedings brought against the Company as a consequence of that breach.
14.2 The indemnity shall apply whether or not the Company has been negligent or at fault.
14.3 If a payment due from the Author under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Company shall be entitled to receive from the Author such amounts as shall ensure that the net receipt, after tax, to the Company in respect of the payment is the same as it would have been were the payment not subject to tax.
15. LIMITATION OF LIABILITY
15.1 Nothing in the Contract shall limit or exclude the Company’s liability (and that of the Group) for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Publishing Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
15.2 Subject to clause 15.1, neither the Company nor the Group shall be liable to the Author, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
15.3 Subject to clause 15.2, the Company and the Group’s total liability to the Author, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Fees paid under the Contract.
15.4 The terms implied by sections 3 to 5 of the Supply of Goods and Publishing Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
15.5 This clause 15 shall survive termination of the Contract.
16.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Author if:
(a) the Author fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment; or
(b) the Author commits a material breach of any term of the Contract or any other contracts entered into between the Author and the Company;
(c) the Author takes any step or action in connection with its entering bankruptcy (if an individual) or administration provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(d) the Author’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
16.2 Without limiting its other rights or remedies, the Company may suspend provision of the Project under the Contract or any other contract between the Author and the Company if the Author becomes subject to any of the events listed in clause 16.1(c) or the Company reasonably believes that the Author is about to become subject to any of them, or if the Author fails to pay any amount due under this Contract on the due date for payment.
17. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Author shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Project the services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Author immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
17.2 After termination of the Contract, the Company shall:
(a) Within 10 Business Days cease the promotion, sale and distribution of the Work and notify the Distribution Channels and any Third Parties to discontinue selling and distributing the Work. The Author hereby acknowledges that the Company shall not have control over the Distribution Channels withdrawing or removing the Work from sale or promotion and therefore irrevocably waive and release from any claims the Company and the Group in connection with the Distribution Channels and any Third Parties failure to timely remove the Work from sale or distribution; and
(b) Return any physical stock held by the Company to the Author, subject to the Author first making payment to the Company for such an amount as reasonably requested by the Company for the cost of postage and packaging. In the event that the Author fails to make payment to the Company within 30 days from the Company requesting payment for the cost of postage and packaging pursuant to this clause 17.2(b), the Author hereby irrevocably consents to the Company destroying any physical stock still held by the Company.
18.1 Force majeure. The Company shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
18.2 Performance. The Company shall use all reasonable endeavours to meet any performance dates specified in the Purchase Order Form (or the Bespoke Quote if applicable), but any such dates shall be estimates only and time shall not be of the essence for performance of the Project.
18.3 Assignment and other dealings.
(a) The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Author shall not, without the prior written consent of the Company, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Authors, clients or publishers of the other party, except as permitted by clause 18.4(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 18.4; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
18.5 Entire agreement.
(a) This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
18.6 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The Company shall however have the right without notice to make any changes to the Project which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Project, and the Company shall notify the Author in any such event.
18.7 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
18.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.9 Set off. The Author shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Author against any amount payable by the Company to the Author.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.10(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18.11 Third parties. Save for the Group, no one other than a party to the Contract shall have any right to enforce any of its terms.
18.12 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
18.13 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
OCTAVO TERMS AND CONDITIONS