One More Story Games Publishing Agreement
This Publishing Agreement (“Agreement”) is entered into as of the Acceptance Date (defined below) between you (“you”, “your”) and One More Story Games Inc. (“OMSG”) with reference to the interactive story (including, without limitation, all literary, dramatic, musical and artistic works, and other copyright-protectable works contained therein) created using OMSG’s StoryStylus software and submitted by you to OMSG for publication or for publication and sale (the “Work”).
1. ACCEPTANCE OF AGREEMENT
By creating and submitting a Work to OMSG for publication, or for publication and sale, you hereby agree to the terms of this Agreement, which will apply in the event, and as of the date (the “Acceptance Date”), that OMSG selects the Work for publication or publication and sale. In such event, you will be notified by OMSG that the Work has been selected for publication, or publication and sale, and the terms of this Agreement will immediately and automatically govern the relationship between you and OMSG with respect to the Work.
2. GRANT OF RIGHTS
(a) You hereby grant to OMSG the non-exclusive right to, and to authorize others to, publish, reproduce, edit, alter, combine with other works, extract elements from, distribute, sell, make available for interactive play and otherwise exploit the Work (including all literary, dramatic, musical and artistic works, and other copyright-protectable works contained therein) for any and all purposes, including for commercial and promotional purposes, in all media whether now known or hereafter devised and in all languages throughout the universe (the “Territory”) in perpetuity (the “Term”), unless earlier terminated as permitted under this Agreement. For greater certainty, and without limiting the foregoing, you hereby grant to OMSG the right to publish, and if you submitted your Work for publication and sale, to sell, the Work through the One More Story Games website (the “Website”) and other digital distribution mechanisms for the purposes of allowing players to play the Work in an interactive manner.
(b) You hereby grant to OMSG the right to use your name (or pen name, if provided instead), likeness, image and biographical data, as may be submitted by you through the Website, in connection with the Work as published or sold by OMSG on the Website and for the purposes of advertising and promoting the Work, OMSG and any OMSG product or service, in any media throughout the Territory.
3. WAIVER OF MORAL RIGHTS
You hereby waive any and all moral rights that you may have in the Work, and in any works created by OMSG or its licensees and assigns that incorporate any element of the Work (including, in both cases, in all literary, dramatic, musical and artistic works, and other copyright-protectable works contained in the Work) and any similar rights granted under the laws of any jurisdiction to the extent such rights may be waived.
4. EDITING AND ALTERATIONS
(a) After the Work has been accepted by OMSG, OMSG may edit the Work or any element of the Work in accordance with its publication standards, including, without limitation, those related to punctuation, spelling, capitalization, narrative structure and use of sounds or images. Additionally, OMSG may make alterations to any element of the Work at any time, if, in the sole opinion of OMSG acting reasonably, the Work contains anything that is or may be in breach of your representations and warranties in Paragraph 9. OMSG will not be obliged to notify you of any such edits or alterations.
(b) Additionally, OMSG may request that you make edits or alterations to the Work or any element of the Work prior to publication, in any manner and for any reason, at OMSG’s discretion. You will make such edits as required by OMSG to OMSG’s satisfaction. OMSG will not be obliged to publish or sell the Work or make any payment to you until such edits or alterations have been completed to OMSG’s satisfaction.
(c) OMSG may require that the Work be reviewed by OMSG’s solicitors prior to publication. You agree to participate in such review as requested, including by answering any questions posed to you by OMSG or OMSG’s solicitors, and providing substantiation for your responses where requested. OMSG may make any edits or alterations, or require you to make any edits or alterations, to the Work based upon the recommendations of OMSG’s solicitors prior to publication or sale. OMSG will not be obliged to publish or sell the Work or make any payment to you until such edits or alterations have been completed to OMSG’s or OMSG’s solicitors’ satisfaction.
(d) Without limiting anything in this Agreement, you expressly grant to OMSG the right to insert advertising in the Website near the Work in any manner at OMSG’s discretion.
(e) You may edit the Work at any time following publication of the Work by using the StoryStylus software. However, the then current published version of the Work will remain published, and, if applicable, for sale, while you complete the edits. You will submit the edited version of the Work to OMSG for review prior to publication or sale. If accepted by OMSG, OMSG will thereafter replace the then current version of the Work for publication, and if applicable, sale, with the new version of the Work. OMSG will not be obliged to accept the edits of the Work and reserves the right to continue to publish and, if applicable, sell, the then current published version of the Work.
5. PUBLICATION, SALE, AND PROMOTION
(a) OMSG may, at its sole discretion, publish, and if you submitted the Work for sale, sell access for interactive play to, the Work in such manner as OMSG deems appropriate on the Website and through other digital distribution channels, including for mobile and tablet use. All details of publication and sale, including, without limitation, pricing, the publication date, and any advertising and promotion will be determined by OMSG in its sole discretion.
(b) OMSG may, at its sole discretion, at any time, cease publishing or selling the Work, or both, without notice to you. If OMSG elects to so cease publication, this Agreement will continue in full force and effect unless terminated pursuant to Paragraphs 12 or 13. In such event, OMSG reserves the right to subsequently publish the Work, or if the Work was accepted for publication and sale, offer the Work for sale, subject to the terms of this Agreement. OMSG may, following a cessation of publication, request that you make edits or alterations to the Work, or any element thereof, for any reason, in order to facilitate a reinstatement of publication and sale of the Work, in which case the terms of Paragraph 4(b) will apply. OMSG may also require the Work to be reviewed by OMSG’s solicitors prior to a reinstatement of publication and sale, in which case the terms of Paragraph 4(c) will apply.
6. PRICING AND ROYALTIES
(a) The terms of Paragraph 6(b) through 6(d), inclusive, and Paragraph 7 apply only in the event that you have submitted the Work for publication and sale and the Work was accepted for publication and sale by OMSG. No royalties or other monies will be payable to you in the event that you submitted, and the Work was accepted, for publication only.
(b) In the event that OMSG offers the Work for sale, OMSG may, at its discretion, sell the Work to players using keys, a digital currency that can be purchased by players through the Website (“Keys”), or using actual cash amounts. The number of Keys required to purchase the Work (the “Key Price”) and the actual cash price (“Cash Price”) will be determined by OMSG in its sole and absolute discretion. OMSG may at any time change the Key Price and the Cash Price of a Work.
(c) OMSG will pay you twenty percent (20%) of the Sale Price for each Paid Sale of the Work (the “Royalties”). As used herein, the “Sale Price” means, as applicable: (i) the Key Price multiplied by one Canadian dollar ($1.00); or (ii) the Cash Price; and a “Paid Sale” means a sale of a Work made by OMSG or its licensees or assigns through the Website or any other digital distribution mechanism for the purposes of interactive play by OMSG customers for which either a Key Price or Cash Price is paid. For greater certainty, the “Sale Price” is exclusive of applicable goods and services tax (“GST”), harmonized sales tax (“HST”) and Quebec sales tax (“QST”), and Royalties are inclusive of applicable GST/HST and QST, if any.
(d) You will be solely responsible for reporting any income for the purposes of income tax in your jurisdiction of residence.
7. ACCOUNTING AND PAYMENT
(a) Following publication of the Work by OMSG for the purposes of sale, an accounting statement reporting all Royalties payable under this Agreement, accompanied by payment of same, will be rendered in respect of each calendar quarter in which Royalties are accrued by the 15th day of each month following March 31, June 30, September 30 and December 31 in each year (the “Accounting Date”), subject to Paragraph 7(b) below. Notwithstanding the foregoing, in respect of any calendar month in which Royalties payable are at least CDN $500, OMSG will account to you on a calendar monthly basis by the 15th day of the month following such calendar month.
(b) OMSG will only render Royalty accountings and make payments in the event that at least twenty Canadian dollars ($20) in Royalties have accrued to you prior to the end of the month preceding the current Accounting Date. In the event that at least twenty Canadian dollars ($20) in Royalties have not been accrued prior to this time, all unpaid Royalties will carry over and be applied against the twenty dollar ($20) minimum on the next Accounting Date.
(c) All payments to you will be made by cheque sent to your address, or, if you elect, by PayPal transfer to the account specified by you.
(d) All accounting statements rendered hereunder are conclusively binding upon you and not subject to any objection by you for any reason unless specific objection in writing, stating the basis thereof, is given to OMSG within one (1) year from the date such statement is rendered (each statement will be deemed rendered when due unless you notify OMSG to the contrary within 120 days after the applicable due date specified in Paragraph 7(a) above), and an audit pursuant to Paragraph 8 below for that statement is completed within a reasonable time after such objection notice is given. Failure to make specific objection or conduct the audit within such time periods will be deemed to be your approval of such statement, your waiver of such audit rights, and your waiver of the right to commence an action, suit or proceeding against OMSG for additional amounts in connection with the applicable accounting period. You will not have the right to commence an action, suit or proceeding against OMSG in connection with any accounting for Royalties payable hereunder, unless you commence the action, suit or proceeding within the applicable one (1) year period referred to above. If you commence such action, suit or proceeding concerning accountings rendered by OMSG under this Agreement, the scope of the proceeding will be limited to determination of the Royalties due for the accounting periods concerned, and the court will have no authority to consider any other issues or award any relief except recovery of any amounts found owing. Your recovery of any such amounts will be the sole remedy available to you by reason of any claim related to OMSG’s accountings. Without limiting the generality of the preceding sentence, you will not have any right to seek termination of the Term or avoid the performance of your obligations hereunder by reason of any such claim.
8. RIGHT TO AUDIT
You may, at your own expense, audit OMSG’s books of account directly relating to Royalties payable under this Agreement. You may make such audit only for the purpose of verifying the accuracy of statements sent to you hereunder and only as provided herein. You will have the right to audit such books of account by notice to OMSG at least 60 days prior to the date you intend to commence such audit. Such audit will be conducted by one of a reputable independent Chartered Accountant, Certified Public Accountant, Certified Management Accountant or Certified General Accountant, will be conducted in such a manner so as not to disrupt OMSG’s other functions, and will be completed promptly. You may make such an examination for a particular statement only once and only within one (1) year after the date any such statement is rendered as provided in Paragraph 7(a) above. Any such audit will be conducted only during OMSG’s usual business hours and at the place where OMSG keeps the books of account to be examined. OMSG’s auditor will review his or her tentative written findings with a member of OMSG’s finance staff designated by OMSG before rendering a report to you so as to remedy any factual errors and clarify any issues that may have resulted from misunderstanding.
9. REPRESENTATIONS AND WARRANTIES
(a) You represent and warrant that:
(1) you have the full power and right to enter this Agreement and you are of the age of majority in your jurisdiction of residence, or you are thirteen years of age or older and have had your parent or legal guardian complete the intervention attached as Schedule A to this Agreement;
(2) you are the sole author of the Work;
(3) you are and will be the sole author of all literary, dramatic, musical and artistic works, or other copyright-protectable works, contained in the Work, or you have obtained all rights necessary in same to grant the rights granted to OMSG in this Agreement;
(4) you have not assigned, pledged or otherwise encumbered the rights granted in this Agreement;
(5) the Work is an original work and does not and will not infringe any intellectual property rights or any other proprietary or personal right of any person, including, without limitation, trade-mark rights, patent rights and rights of personality and privacy;
(6) the Work does not and will not contain material that is defamatory, malicious or otherwise harmful so as to subject OMSG to liability to any third party or otherwise be contrary to law;
(7) the Work does not and will not contain any reference to any identifiable third parties, unless consent has been obtained from each such individual;
(8) the Work does not and will not violate any law;
(9) the Work does not and will not contain content tending to disparage, denigrate or defame OMSG and will not tend to shed a negative light or reflect negatively on OMSG, or bring OMSG into public scandal, ridicule, contempt or disrepute;
(10) the Work is not and will not be purely pornographic or obscene (for clarity, if in the genre of erotica, its primary focus will not be on graphic sexual acts), as determined by OMSG in its discretion;
(11) the Work does not and will not contain derogatory characterizations of any real ethnic, racial, sexual, religious or other groups;
(12) the Work does not and will not contain personal information of individuals, including, without limitation, names, telephone numbers and addresses (physical or electronic);
(13) the Work does not and will not contain any identifiable third party products, trademarks, brands or logos, and does not and will not contain advertisements for any real organizations, persons, products or services;
(14) the Work does not and will not: (i) contain any material that violates any other agreement to which you are a party; (ii) include or disclose any information given to you on the understanding that it would not be published; or (iii) include any information that has been obtained unlawfully; and
(15) you are not registered for GST/HST purposes under Part IX of the Excise Tax Act (Canada) or for QST purposes under An Act respecting the Quebec sales tax.
(b) You agree that OMSG has relied on these representations and warranties in entering into this Agreement and will be entitled to rely on same in dealing with any third party in connection with the exercise or disposition of any rights in the Work. Each of the foregoing representations and warranties will survive the termination of this Agreement.
(a) You will indemnify OMSG from any loss, damage, expense (including reasonable attorneys’ fees), recovery, costs, or judgment arising from any breach or alleged breach of any of your obligations, representations or warranties under this Agreement, subject to the following terms:
(1) Each party will promptly inform the other of any claim made against either which, if sustained, would constitute a breach of any obligation, representation or warranty made by you to OMSG in this Agreement. OMSG will defend any such claim made against OMSG with counsel of OMSG’s selection. You will fully cooperate with OMSG in such defense and may join in such defense with counsel of your own selection at your expense.
(2) OMSG may on its own behalf settle any such claim made against OMSG on terms OMSG deems advisable.
(3) If any such claim is made, OMSG may withhold a portion of Royalties due to you to cover your obligations stated above. Amounts withheld will be related to OMSG’s reasonable assessment of the damages claimed and of the anticipated defense costs. OMSG will deposit monies so withheld in an account pending disposition of the claim; monies withheld will be first applied to satisfy your obligation to indemnify OMSG, and the balance remaining will be thereafter remitted to you after the disposition of the claim or after the claim has in OMSG’s opinion been abandoned.
(b) This indemnity will survive the termination of this Agreement.
11. RESERVED RIGHTS
All rights to the Work not granted to OMSG in this Agreement are reserved by you. In exercising such rights, you will reserve for OMSG’s benefit the rights granted to OMSG in this Agreement.
12. YOUR RIGHT OF TERMINATION
(a) You may terminate the Term of this Agreement with respect to the Work by providing notice of your desire to have the work withdrawn from publication and sale. In such event, OMSG will, within thirty (30) days of receipt of such notice, cease publishing and selling the Work. OMSG will be under no obligation to publish or sell the Work at a later date. All rights granted to OMSG by you under this Agreement with respect to the Work will terminate, subject to Paragraph 12(b) below. You may resubmit the Work for consideration by OMSG following such termination, provided that OMSG will have no obligation to accept it.
(b) In the event that you terminate the Term of this Agreement, OMSG will continue to have the right to, and to authorize others to, use the Work, your name (or pen name, if provided instead), likeness, image, and biographical information, and any part thereof, in existing promotional or advertising materials, but OMSG will not create or authorize the creation of any new such materials incorporating any part of the Work or your name (or pen name), likeness, image, or biographical information unless those rights have been granted under a separate agreement. OMSG will continue to make Royalty payments to you for any Paid Sales of the Work made prior to termination as described in Paragraph 7.
(c) All of your warranties and indemnities will survive the termination of the Term of this Agreement.
13. OMSG’S RIGHT OF TERMINATION
(a) In addition to OMSG’s right to remove the Work from publication or sale without terminating the Term of this Agreement pursuant to Paragraph 5(b), above, OMSG may, at any time and for any reason, terminate the Term of this Agreement by removing the Work from publication and sale and providing notice of termination to you. Upon such termination, OMSG will cease publishing and selling the Work, and will be under no obligation to publish or sell the Work at a later date. All rights granted to OMSG by you under this Agreement will terminate, subject to Paragraph 13(b) below. You may resubmit the Work for consideration by OMSG following such termination, provided that OMSG will have no obligation to accept it.
(b) In the event that OMSG terminates the Term of this Agreement, OMSG will continue to have the right to, and to authorize others to, use the Work, your name (or pen name, if provided instead), likeness, image and biographical information, and any part thereof, in existing promotional or advertising materials, but OMSG will not create or authorize the creation of any new such materials incorporating any part of the Work or your name (or pen name), likeness, image, or biographical information unless those rights have been granted under a separate agreement. OMSG will continue to make Royalty payments to you for any Paid Sales of the Work made prior to termination as described in Paragraph 7.
(c) All of your warranties and indemnities will survive the termination of the Term of this Agreement.
14. NO OBLIGATION
OMSG will be under no obligation to publish or sell the Work, including without limitation, in the event the Work has been selected for publication or publication and sale by OMSG. You expressly disclaim all rights to claim damages, loss of profits, specific performance or any other remedy under law or equity in the event that OMSG does not publish or sell the Work, or fails to continue to publish or sell the Work, for any reason.
15. GENERAL PROVISIONS
(a) This Agreement will be binding upon and inure to the benefit of your successors and assigns and the successors and assigns of OMSG. You may not assign this Agreement. OMSG may, upon written notice to you, assign this Agreement to any person.
(d) This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. For the purposes of all legal proceedings, this Agreement will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have jurisdiction to entertain any action arising hereunder. You and OMSG each hereby attorns to the jurisdiction of the courts of the Province of Ontario.
(e) You will promptly make, do, execute or deliver or cause to be made, done, executed or delivered, all such further acts or documents as OMSG may reasonably require from time to time for the purpose of giving effect to this Agreement.
(f) Any demand, notice or other communication (“Communication”) to be given in connection with this Agreement will be given in writing and may be given by personal delivery, by facsimile transmission or by registered mail. Any Communication given to OMSG must be sent TO 80 Bradford Street, Suite 328, Barrie, Ontario L4N 6S7 Canada, attn.: Publishing Department, with a copy to OMSG’s counsel, Gowling Lafleur Henderson LLP, 1 First Canadian Place, Suite 1600, 100 King Street West, Toronto, Ontario M5X 1G5 Canada, attn.: Susan Abramovitch. Each party may change its respective address hereunder by notice in writing to the other. Any Communication given by personal delivery or facsimile transmission will be conclusively deemed to have been given on the day of actual delivery thereof and, if given by registered mail, on the fifth business day following the deposit thereof in the mail.
(g) The caption headings of this Agreement are inserted for convenience only and are without substantive effect.
(h) It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.