PDMI PUBLISHING www.pdmipublishing.com P.O. Box 56 Albertville, Alabama 35950 1 (855) PUBLISH (855-782-5474); or 877-979-7364 Fax: 256-485-46977
AGREEMENT FOR ILLUSTRATING SERVICES This Agreement, dated _____________, 20_________ for Illustrating Services, is by and between ________________________ (Illustrator), PDMI Publishing (PDMI), and ________________ (Author), (together known as the “Parties�) for Illustrating Services (Artwork) to be performed for a manuscript with the working title ____________________________ (Work) as authored by _______________________ (Author). The Parties agree as follows: 1.
Intellectual Property Provisions
PDMI shall provide Illustrator the Work known as _________________________ in an electronic file format for review purposes. PDMI will also provide Illustrator with any notes originating with the Author pertaining to design requirements, style preferences, and specific story cues. All contents of the file, including all preexisting Trademarks and copyright material, shall remain the sole property of PDMI and _______________________ , the Author of the Work. Pursuant to separate agreements between PDMI and the Author, the Author shall be the sole owner of all rights in connection therewith. Illustrator is permitted to make sufficient copies of the file to perform the duties outlined in this Agreement. All Third Party Materials, such as but not limited to photographs, drawings, or diagrams, are the exclusive property of their respective owners. Illustrator shall inform PDMI of all Third Party Materials that may be required to perform the Illustrating Services or which may otherwise be integrated into the Final Work. Under such circumstances, Illustrator shall inform PDMI of any need to license. Upon completion of the Services, and conditioned upon full payment of costs and out-of-pocket expenses due, Illustrator shall assign to PDMI all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Illustrator as part of the Artwork for use by PDMI. Illustrator shall cooperate with PDMI and shall execute any additional documents reasonably requested by PDMI to evidence all such assignments of intellectual property. 2.
Fees
In consideration of the services to be performed by Illustrator, PDMI shall pay to Illustrator (check one) a. _________ royalties on sales of the Work at the rate of ________ Percent ( _______%) of the gross royalties on Work subject to certain out-of-pocket production costs, which shall be mutually agreed to; or, b.
_________ a flat rate of __________ Dollars ($________ ) per Illustration.
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3.
Timing and Acceptance
Illustrator shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. PDMI agrees to submit Illustrations to Author for review within the time identified for such reviews and to promptly either (i) provide acceptance of the Artwork by PDMI and Author in writing or (ii) provide written comments and/or corrections sufficient to identify the Author’s and PDMI’s concerns, objections or corrections to Illustrator. PDMI shall then review the Artwork and the recommended changes and determine whether or not the work is acceptable with any agreed changes. If the illustrations are acceptable, all Artwork will be scheduled for formatting within the Work. If not, Artwork will be returned to the Author and the Illustrator for further revisions. PDMI is the final authority for acceptance of a manuscript or illustrations for publication. PDMI will ensure that all Artwork is recorded at acceptable production detail level, including checking DPI resolution, contrast, and layout. Once Author and PDMI have accepted the Work for publication, the Fees will become due or payable as described in Section 2. “Fees.” 4.
PDMI Responsibilities
PDMI acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: a. b. c. d. 5.
Coordination of any decision-making between Author and Illustrator; Provision of PDMI Content in a form suitable for conceptual understanding by Illustrator, including the maintenance of photographs, diagrams or other artwork; Final acceptance of Artwork as described in Section 3; and, Final preparation of Artwork in a format suitable for production at an acceptable level of quality. Illustrator Responsibilities
Illustrator acknowledges that he or she shall be responsible for performing the following in a reasonable and timely manner: a. b. c.
6.
Use a medium and materials which can be converted to digital files either with photography or by direct transfer of files in ________________ formats; Use due diligence in avoiding copyright infringement in the use of elements of the Artwork and to provide PDMI with licensing information if required; Use reasonable communication skills to convey suggestions regarding artistic interpretation to the Author in view of acquiring Author’s approval of Artwork. Recognition
Illustrator retains the right to reproduce, publish and display the Artwork in Illustrator’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Artwork in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website.
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Illustrator shall also receive appropriate recognition within the published Work, advertising and marketing of the Work, and on PDMI’s website, as a contributing member of the PDMI community. 7.
Confidential Information
Each Party acknowledges that, in connection with this Agreement, it may receive certain confidential or proprietary information and materials of PDMI or the Author. Preliminary copyright filing is practiced by PDMI before any project begins. Breach of copyright laws will not be tolerated. If plagiarism is detected by PDMI or any of its affiliates, the offending party shall be terminated and all agreements considered null and void. Plagiarism is defined as presenting someone else’s work as one’s own. Any ideas or materials taken from another source for either written or oral use must be fully acknowledged, unless information is common knowledge. Plagiarism includes the copying of language, structure, images, ideas, or thoughts of others. Disagreements pertaining to extent or nature of any copyright breach shall be submitted to Alternate Dispute Resolution with an organization or institute familiar with ethical standards of copyright and/or intellectual property rights and in a position to test and pass judgment on the merit of the claim. 8.
Relationship of the Parties
Illustrator is an independent contractor, not an employee of PDMI or any company affiliated with PDMI. Illustrator shall provide the services under the general direction of PDMI, but Illustrator shall determine the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither Party is authorized to act as agent or bind the other Party, except as expressly stated in this Agreement. Services performed by the Illustrator shall be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Illustrator are contractual in nature, and are wholly defined by the express written agreement of the Parties and the various terms and conditions of this Agreement. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. PDMI is free to engage others to perform services of the same or of a similar nature to those provided by Illustrator, and Illustrator shall be entitled to offer and provide services to others, solicit other clients, and otherwise advertise the services offered by Illustrator. Illustrator is required to complete a form W-9 in order to provide appropriate information to PDMI for the preparation of a 1099 for income tax purposes. No payment of fees due will occur without submission of a Form W-9. 9.
Warranties and Representations
PDMI represents, warrants and covenants to Illustrator that a. b.
PDMI owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the PDMI Content; and, To the best of PDMI’s knowledge, the PDMI Content does not infringe the rights of any third party, and use of the PDMI Content, as well as any Trademarks in connection with the Work, does not and will not violate the rights of any third parties.
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Illustrator represents, warrants and covenants to PDMI that a.
10.
Illustrator will provide services as identified in the Agreement in a professional and workmanlike manner, and in accordance with all reasonable professional standards for such services. Indemnification
PDMI agrees to indemnify, save and hold harmless Illustrator from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of PDMI’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, PDMI shall promptly notify Illustrator in writing of any claim or suit. PDMI has sole control of the defense and all related settlement negotiations. Illustrator shall provide PDMI with commercially reasonable assistance, information and authority necessary to perform PDMI’s obligations under this section. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Illustrator agrees to indemnify, save and hold harmless PDMI from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Illustrator’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of PDMI. 11.
Term and Termination
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and accepted by Author. Percentage Fees which may become due under Section 2 above shall be in effect for the full term of the contract between PDMI and Author. This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party, including Author: a. b.
Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or, Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 20 days from receipt of written notice of such breach.
Upon expiration or termination of this Agreement: a. b.
12.
Illustrator shall return all files related to Artwork and destroy all electronic copies of same not required for permitted uses as defined in Section 6, Recognition; and, Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the services, shall survive. General
This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
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All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt. Illustrator shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of PDMI. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and State of Alabama, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. The numbering and captions of the various sections are solely for convenience and reference only, and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement. By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective Party to all of the terms and conditions herein.
X_____________________________________ ________________________________________ PUBLISHER
X__________________________
X_____________________________________ ILLUSTRATOR
X_____________________________ X________________________________ DATE
X_____________________________________
X____________________________
AUTHOR
DATE
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