ACP Contract

Here’s ACP’s new standard contributor agreement – at 22 May 2009

PLEASE NOTE – this contract has a deal-breaker clause –  5.1 – perpetual rights everywhere forever – our informants advise that most ACP editors WILL accept this contract with this clause struck out.  Make sure you do this before submitting it!
TERMS AND CONDITIONS

These Terms and Conditions form part of the Contributor Agreement between ACP Magazines Ltd (“ACP”) and the Contributor.  Where a meaning is given to a term on the front cover sheet or attached letter, it has that meaning in these Terms and Conditions.  The Contributor agrees that during the term of this Contributor Agreement, all works created, developed or produced by the Contributor pursuant to a commission by ACP (the “Works”) are covered by this Contributor Agreement.

1.    COMMISSION
1.1    In relation to each commission of the Contributor by an ACP
magazine, ACP will advise the Contributor of the subject matter, required length, due date and fee payable for the Work commissioned (“Commission Terms”).
1.2    The Contractor agrees that all Works will conform to the
Commission Terms and be of a quality acceptable to the editor of the Commissioning Publication.  The Contributor must provide the Works by the due date specified in the Commission Terms.
1.3    The Contributor must provide all the resources required to provide
the Works in accordance with this Contributor Agreement.
2.    CONTRIBUTOR’S OBLIGATIONS
2.1    The Contributor must:
(a)    pay in full all costs (direct and indirect), taxes, levies and
charges under any applicable law in respect of all fees paid to the Contributor by ACP and in respect of each employee, agent or contractor of the Contributor;
(b)    take out and maintain at the Contributor’s cost all necessary
statutory workers compensation and public liability insurance policies; and
(c)    comply, and ensure that any person employed or engaged by the
Contributor complies, with:
(i)    all requirements prescribed by any applicable law or instrument;
and
(ii)    the requirements set out in ACP’s Contractor Occupational Health
and Safety Standards as varied from time to time.
2.2    In providing the Services, the Contributor must not:
(a)    make any statement, supply any information or engage in conduct
which injures or is likely to prejudice ACP’s business or reputation or that of any publication of ACP;
(b)    defame any person, injure any person or infringe the copyright or
intellectual property rights of any person; or
(c)    breach, or cause ACP to breach, any other law applicable to the
Works, including without limitation any applicable privacy legislation, any statutory, equitable or contractual obligation of confidence owed to any person, and any other legislation relating to the use or disclosure of information.
3.    WORKS PROVIDED BY CONTRIBUTOR
3.1    ACP may, in its discretion, decide not to publish any Works
provided by the Contributor pursuant to this Contributor Agreement.
3.2    The Contractor warrants that all Works supplied by the Contractor
to ACP will be the Contractor’s original work, that all such Works will be created pursuant to the relevant commission by ACP, be exclusive to ACP and not have been previously published.  The Contractor further warrants that the Works, and their reproduction and use by ACP and its Related Bodies Corporate in accordance with this Contributor Agreement, will not infringe the copyright or other intellectual property rights of any person.
3.3    For the avoidance of doubt, the Contributor acknowledges and
agrees that all decisions regarding the use, marketing and promotion (if any) of a Work will be made by ACP in its absolute discretion.
4.    FEES
4.1    Following provision by the Contributor of a Work pursuant to a
commission, the Contributor must provide ACP with a tax invoice which complies with the GST Law and which sets out the fee payable for the Work in accordance with the relevant Commission Terms for that Work.
ACP will pay the Contractor the fee specified in the relevant Commission Terms within 30 days of the end of the month in which ACP receives the tax invoice.
4.2    In consideration of the rights assigned to ACP under clause 5.1,
ACP will pay the Contributor:
(a)    a syndication fee (the “Syndication Fee”) equal to the Specified
Percentage of the amount received by ACP from licensing the Rights in the Works to third parties less taxes and all third party fees, charges and commissions (such amount being “Revenue”), excluding amounts received from the use or licensing of such Rights in connection with or in relation to Brand Publications or ACP Publications; and
(b)    a Re-Use Fee in respect of each use, or licence granted for use,
of a Work in an ACP Publication provided that the Work is longer than 300 words.
4.3    For the avoidance of doubt, no amount will be payable to the
Contributor in respect of any use or licensing of the Rights in the Works in connection with or in relation to Brand Publications or ACP Publications other than the amount specified for the use described in clause 4.2(b).
4.4    Within 30 days of the end of each calendar quarter, ACP will
provide the Contributor with a recipient created tax invoice (“RCTI”) setting out all Syndication Fees payable by ACP to the Contributor in respect of Revenue received by ACP in the previous quarter and all Re- Use Fees payable to the Contributor pursuant to clause 4.2 in respect of licences granted by ACP in the previous quarter.  ACP will pay the Contributor the relevant amount on the same day as the RCTI is provided.
4.5    ACP will not issue a RCTI to the Contributor in respect of a
quarter if ACP has not received any amounts in the calendar quarter in respect of which Syndication Fees are payable or granted any licences in that quarter in respect of which Re-Use Fees are payable to the Contributor.
4.6     The parties agree that:
(a)    ACP, as recipient, will issue tax invoices in respect of the
supplies referred to in this Contributor Agreement;
(b)    the Contributor will not issue tax invoices in respect of supplies
under this Contributor Agreement, and the Contributor acknowledges that it is currently registered for GST and that it will notify ACP if it ceases to be registered; and
(c)    ACP is currently registered for GST, and will notify the
Contributor if it ceases to be registered or if it ceases to satisfy any of the requirements relating to the issuing of RCTIs under the GST Law.
4.7    The Contributor must advise ACP in writing of any change to the
Contributor’s contact details as at the date the parties entered into this Contributor Agreement.  If the Contributor fails to do so and ACP is unable to contact the Contributor for a period of 6 months, ACP shall not be liable to pay and the Contributor forfeits all entitlement to receive any Syndication Fees and/or Re-Use Fees payable to the Contributor during that 6 month period and such further period as may elapse until the Contributor notifies ACP in writing of new contact details.
4.8    ACP will deduct from any payments it must make under clause 4 all
amounts it is required by law to deduct, including without limitation, tax.
4.9    ACP will reimburse the Contributor for any out of pocket expenses
incurred by the Contributor in providing the Services provided such expenses were approved by ACP in writing prior to being incurred by the Contributor and the Contributor provides ACP with receipts in relation to such expenses at the time of submitting an invoice to ACP.
5.    COPYRIGHT AND MORAL RIGHTS
5.1    The Contributor irrevocably assigns to ACP all present and future
copyright (including all rights comprised in such copyright now or at any time in the future) throughout the world, in all Works, such assignment to be effective from the date of creation of the relevant Work
5.2    The Contributor must do all things requested by ACP to enable ACP
to assure further the rights assigned under clause 5.1.
5.3    Without limiting clause 5.4, the Contributor unconditionally and
irrevocably consents, and agrees to procure that each of its employees, agents and subcontractors unconditionally and irrevocably consents, to all or any acts or omissions by ACP or persons authorised by ACP which may infringe any moral rights in the Works, as described in Part IX of the Copyright Act 1968, or any analogous rights that exist or may come to exist anywhere in the world.
5.4    ACP and persons authorised by ACP may amend, add to or delete from
any Work.  To the extent that any of those acts would otherwise infringe the moral rights of any person in the Works, as described in Part IX of the Copyright Act 1968, or any analogous rights that exist or may come to exist anywhere in the world, the Contributor agrees to procure the consent of that person to those acts.  The Contributor agrees to ensure that this consent is separate from any consent provided under clause 5.3
6.    TERM AND TERMINATION
6.1    This Contributor Agreement commences on the Commencement Date.
6.2    This Contributor Agreement may be terminated by either party at
any time by giving 30 days written notice to the other party
6.2    For the avoidance of doubt, the Contributor will continue to
receive Syndication Fees and Re-Use Fees in accordance with clause 4 following termination of this  Contributor Agreement under clause 6.1.
6.3    Termination of this Contributor Agreement will not affect any
accrued rights or remedies either party may have.
7.    GENERAL
7.1    The Contributor must not use or disclose any confidential
information of ACP of which the Contributor becomes aware in the course of providing the Services for any purpose other than the provision of the Services.
7.2    The Contributor must not assign or otherwise transfer any right or
obligation arising out of this Contributor Agreement without the prior written consent of ACP.
7.3    ACP may assign, novate or otherwise deal with this Contributor
Agreement, or its rights or obligations under this Contributor Agreement, at any time in its absolute discretion.
7.4    No variation to this Contributor Agreement is effective unless in
writing signed by each party.
7.5    Nothing in this Contributor Agreement constitutes a relationship
of employer and employee, principal and agent or partnership between ACP or any of its related bodies corporate, as defined in the Corporations Act 2001 (Cth) (referred to in this Contributor Agreement as “Related Bodies Corporate”)  and the Contributor or any of its employees, agents or subcontractors.
7.6    This Contributor Agreement is governed by the laws of New South
Wales.
7.7    This Contributor Agreement constitutes the entire agreement
between the parties as to its subject matter and replaces all prior understandings, agreements, representations and warranties about that subject matter.
7.8    In this Contributor Agreement:
(a)    “ACP Publication” means any hard copy or electronic publication
anywhere in the world which is not a Brand Publication but which:
(i)    bears the same or substantially similar title as a publication
published (whether now or in the future) in Australia or New Zealand by ACP or any of its Related Bodies Corporate; or
(ii)    is published (whether now or in the future) by ACP or any or its
Related Bodies Corporate, or any entity in which ACP holds a direct or indirect interest; and any supplements, one-shots or other forms of expression, communication or media now known or developed in the future in which the Work is used or reproduced and which is associated with such publication or is promoting such publication.
(b)    “Brand Publication” means the Commissioning Publication and any
electronic publication or hard copy publication anywhere in the world which bears the same or substantially similar title as the Commissioning Publication (whether now or in the future) and any supplements, one-shots or other forms of expression, communication or media now known or developed in the future in which the Work is used or reproduced and which is associated with such publication or is promoting such publication.
(c)    “Commissioning Publication” in respect of a Work means the ACP
publication which commissions the Work.
(d)    “GST Law” has the meaning given to it in A New Tax System (Goods
and Services Tax) Act 1999 (Cth).
(e)    “Re-Use Fee” means an amount determined by ACP as payable to the
Contributor for the re-use of a Work in an ACP Publication.
(f)        “Rights” means all of a copyright owner’s rights in a work.
(g)        “Specified Percentage” means the percentage specified on the
front page of the Contributor Agreement.
(h)    A reference to the singular includes the plural and vice versa.

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