Well, digitally publishing your comic for mobile and tablets just got as easy as an upload. ComiXology has unveiled its Submit portal, which allows creators to upload their comics and have them transformed to comiXology’s Guided View technology for free. Materials submitted must be approved, but once they are available, comiXology and the creators will then share revenue. Pretty simple.
Works by R. Stevens, Becky Cloonan, Jake Parker, and Shannon Wheeler have been rolled out as proof of concept.
More will be revealed at this week’s SXSW, but in the meantime the long-brewing program finally gives creators everywhere access to comiXology’s mobile and web platforms. We can see some moaning about the approval process but that’s only to be expected. Also: discoverability.
In honor of the occasion, Shannon Wheeler drew three cartoons, all of which you can see here.
Starting now, independent comic book and graphic novel creators can build a worldwide following and profit from their work. Through a portal called comiXology Submit, from comiXology, the revolutionary digital comics platform, independent creators simply need to upload their comic book and graphic novels for approval at no cost. ComiXology does the rest, from transforming the work with comiXology’s Guided View reading technology, to making it available on comiXology’s buy once, read anywhere digital comics platform, which includes an iTunes top 10-grossing iPad app, iPhone, Android, Kindle Fire and Windows 8 apps, and a web store and reader at www.comixology.com. Creators and comiXology equally split all profits, with creators maintaining full ownership of their work.
ComiXology Submit enables independent comics creators, from promising new talent to established veterans, to reach a global audience of comic book fans for whom comiXology already created the first viable digital marketplace for leading publishers. At the same time, comiXology Submit bolsters comiXology’s commitment to bringing its customers the best and most diverse content available.
Independent creators’ works will be transformed into Guided View, comiXology’s groundbreaking technology that turns reading comics into an immersive, cinematic experience. Works from Shannon Wheeler (“Too Much Coffee Man” cartoons), Jake Parker (“The Antler Boy and Other Stories”), Becky Cloonan (“Wolves,” ”The Mire”), Richard Stevens (“Diesel Sweeties”) and other top independent creators are available today, with many more to follow now that the platform is open.
“While we continue to push ourselves to innovate the digital comic experience, comiXology Submit provides an incredible opportunity for creators to sell their work to a highly targeted and global audience of comic book and graphic novel fans,” said David Steinberger, comiXology co-founder and CEO. “The next generation of creators will reap great benefit alongside more well known creators selling books that are no longer available in print.”
“This is also about making sure we always have the best, most diverse content available, the best reading and buying experience, and at the same time, supporting comic book creators around the globe,” said John D. Roberts, comiXology co-founder.
“ComiXology Submit opens it up for independent comic books artists, creating the chance to digitally publish comics that one can sell everywhere,” said Shannon Wheeler, creator of the critically hailed “Too Much Coffee Man” series and a contributing cartoonist to The New Yorker. “When I created ‘Too Much Coffee Man’ 20 years ago in Austin, I spent many late nights making the stupid comics. Then I spent long days bugging shop owners to sell my stuff. Then I spent minutes losing the invoices, ensuring I never got paid. With comiXology Submit, I could have spent all that time creating my comics and I’d have gotten paid twice as often too.”
More details about comiXology Submit will be unveiled on Saturday at 5:45 PM CST at SXSW Interactive, as comiXology co-founder and CEO Steinberger takes the stage with fellow co-founder Roberts and Wheeler on the SXSW GEEK Stage at the Palmer Auditorium in Austin, TX.
Creators interested in submitting works for approval can visit http://submit.comixology.com. Comic book fans interested in finding works by independent creators now available on comiXology are invited to visit http://www.comixology.com/submit.
I’m sorry I don’t have tickets to SXSW. This will be taking place about ten minutes away from where I live. It sounds nice, but the first question that always comes to my mind is, “What’s the catch?” Do you do they own any part of it? Do you have to be exclusive? I’ll be interested to do some reading on this.
“Do you do they own any part of it? Do you have to be exclusive? ”
They answer all this in the link above but the short of it is you retain all ownership and it’s a non-exclusive distribution arrangement. You can sell the books anywhere you want to on top of through them.
Yes, I’ve been looking it over. They do keep their answers short. These are always questions that creators should always be asking. CYA.
I wonder if they’ll let you sell ad space, within your own work.
“I wonder if they’ll let you sell ad space, within your own work.”
No! We signed with the European Comixology and just received the fact sheet and it says very clearly that all ads will be deleted by the graphics team.
The FAQ answers are pretty brief, but there’s a LOT more info here:
https://submit.comixology.com/site/guidelines
Including this tidbit, Mr. Moonlight: “◦No Advertisements allowed”
Hmm, in the spirit of Kirby, Ditko, Moore, Siegel & Schuster,,,,Let’s take a looksee at this contract, the one the lawyers made that you have to agree to when you submit your comic, the one that’s legally binding,(not the happy bullet points on the site)
Why here’s something from it:
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7. Limitation on Company’s Obligations and Liability to You
THE CREATOR SUBMISSION SERVICE PROVIDED IN CONNECTION WITH THIS AGREEMENT IS PROVIDED AS IS WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK.
THE COMPANY WILL NOT RETURN ANY CONTENT SUBMITTED TO IT WHETHER OR NOT SUCH CONTENT IS ACCEPTED FOR DISTRIBUTION. THE COMPANY IS NOT RESPONSIBLE FOR LOST OR DAMAGED CONTENT. THE COMPANY IS NOT RESPONSIBLE FOR, AND WILL HAVE NO LIABILITY FOR, ANY DAMAGE TO YOUR COMPUTER, DEVICE, OTHER HARDWARE OR SOFTWARE, OR FOR LOSS OF OR DAMAGE TO DATA RESULTING FROM YOUR USE OF THIS SERVICE.
THE COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF, KNOWS OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100.
(so do they get to spend the under$100 while you’re waiting to sell 35 too 100 comics …why did they bold the type here (that wasn’t me) . Little more than one sentence I see)
more fun facts from the Comiclogy contract:
2.4 Licensee shall be entitled to provide to the users of the Comics Store a partial issue for each Licensed Work at no cost to users or Licensee. Such partial issue will not comprise more than twenty percent (20%) of the pages of the Licensed Work.
2.5 Licensor shall determine the pre-tax sale price of the Licensed Work to be distributed or sold by Licensee pursuant to this License Agreement, subject to the following: (a) to accommodate technical requirements of Licensee’s pricing mechanism, prices will begin at $0.99 and increase in $1.00 increments, (b) Licensor will not set a sale price for the Licensed Work higher than the sale price for the Licensed Work on any other channel for which Licensor sets prices, and (c) Licensee shall have the right to reduce its price for the Licensed Work to the competing price the Licensed Work is available for on any other channel or to the next lowest price feasible under the technical requirements of Licensee’s pricing mechanism and shall have the right to offer the Licensed Work for free to meet similar competing offers for the Licensed Work.
2.6 If Licensee has licensed more than one Licensed Work to Licensor, Licensor shall have the right to “bundle” such Licensed Works for sale in the form of virtual trade paperbacks or otherwise, at such discounts to the individual sales price of such Licensed Works (if sold separately) as shall be determined by Licensee in its sole discretion.
2.7 Licensee shall have the right to sell Licensed Works series consisting of multiple future installments of a Licensed Work at such discounts to the price of the individual installments, as Licensee shall determine in its sole discretion.
2.8 Licensee, in its sole discretion, will determine from time to time whether or not to offer the Licensed Work for sale, the platforms and channels, if any, on which to offer the Licensed Work, and without limiting the generality of the foregoing, may at any time remove from any channel or platform any Licensed Work that violates the standards of such channel or platform or that Licensee, in its sole discretion, considers to be inappropriate for any portion of the audience or users of such channel or platform.
more fun facts….legal comixology contract- the payment part….
SCHEDULE A
PAYMENTS AND FEES
1. Fees. For each partial or full calendar quarter of the Term, Company shall remit to Licensor, by the 45th day following the end of each calendar quarter of the Term or the first business day thereafter if the 45th day falls on a federal holiday in the United States or a state holiday in the State of New York or a weekend, the royalty (the “Royalty”) described below, for the then-ended calendar quarter:
Fifty percent (50%) of Net Sales for each Licensed Work sold during such quarter.
2. Method of Payment. The Royalty payment shall be made in U.S. Dollars via electronic fund transfer (“EFT”), or, if such wire transfer is not feasible, such other method as may reasonably substitute therefor. The paying Party shall be responsible for any costs charged by its bank for initiating an EFT and the payee Party shall be responsible for any costs deducted by its bank, financial institution or payment receipts provider for receipt of an EFT. Each Party shall provide all tax documentation reasonably requested by the other or as required by law.
3. Minimum Balance. Payments to Licensor shall be made when the Royalty amount due Licensor equals or exceeds $100.00 (the “Minimum Balance”). If the amount of the Royalty due Licensor is less than the Minimum Balance, then the payment of the Royalty will be held until a subsequent calendar quarter during which the Minimum Balance is reached. Failure to reach the Minimum Balance shall not result in forfeiture of the Royalty due to Licensor, and such Royalty less than the Minimum Balance shall be paid by Licensee at such time or times and in such manner as Licensee may determine in its sole discretion.
This is potentially big news. This is what I was thinking of in my End Of The Year Beat Survey. That the other digital shoe might drop and open the gates to *original* digital pathways. Not just a website, or blog, but with a major distribution hub (i.e., Comixology).
How will it shake out? Who knows… but I think creators should jump on it. In this day and age it’s important to get your ten fingers in as many pies as possible. Comic stores, print, digital, conventions, social media, whatever.
If in fact Comixology is going to begin working with a lot of smaller, indepedent creators then I can (easily) imagine they are asking for trouble with the “Minimum Balance” thing, especially if they intend to issue no statements to Licensors regarding how much revenue has been generated, until the total, no matter how long it takes, reaches $100 (am I reading that right?) .. I suspect a lot of people who sign up under such terms will come to think they are somehow being cheated, even if Comixology is only doing exactly what it agreed to do.
They can interpret the $100 any way they like while essential retaining all uses for digital rights on their platform including repricing as they see fit and it looks like bundling it into some kind of trade. So is $100 after gross, after net, after they get their cut? Its open to interpretation, They have lawyers steering every passage to advantage, it even looks like their liability is $100 max if everything goes awry. Not a lawyer but I’m smelling a scam. There is no reason to sign over your digital rights to Comixology. The advantage is their base of readers and how they may promote you, but nothing is revealed on that matter if thats what they are going to do or just fold you into some dark cavern of their site,
Sorry to have to do the journalism here, I know everything is fine and dandy in the comics world… Eric Stephenson and Image is awesome, DC is awesome ,Marvel and Comixology is awesome, and another bad Iron Man movie is on the way and thats awesome too. But maybe an overeager creator that might have something actually awesome to bring us should hang tight for a while and do his business right and not just fast forward through this contract to give Comixology all options on the table. This is a business thick with selfish gangsters after all….
johnrobiethecat, you make some good points, but this…
“They can interpret the $100 any way they like while essential retaining all uses for digital rights on their platform including repricing as they see fit and it looks like bundling it into some kind of trade. So is $100 after gross, after net, after they get their cut? Its open to interpretation, ”
…is pretty clearly wrong. Per the contract you quoted… “Payments to Licensor shall be made when the Royalty amount due Licensor equals or exceeds $100.00 (the “Minimum Balance”).” The amount due to the licensor is defined elsewhere as “Fifty percent (50%) of Net Sales for each Licensed Work sold during such quarter.” And “Net Sales” is defined elsewhere as (1) 50% of the customer-paid price through the Comixology website, and (2) 50% of what’s leftover of a the customer-paid price through mobile apps. If you sell a comic for $2 through the Comixology site, $1 goes into your account. If you sell a comic for $2 through the Comixology iPad app, Apple gets the first 60 cents (I think), Comixology gets 70 cents, and 70 cents goes into your account. The payment part, at least, is very straightforward, and puts a MUCH higher percentage of the cover price in the pocket of the creator than selling print comics through Diamond does.
Oh, and the “bundling for trade” option basically just says if you’re selling 5 comics for $1.99, they can sell those as a “trade” of all 5 issues for $9.99. These kinds of “trades” are all over the current Comixology app (though, obviously, you save a few pennies if you buy the issues separately).
Hope it works out that way, all fairish and reasonable. Things going awry might be an article headline 6 months from now if creators filled jipped by not reading the fine print. Which if all goes wrong, its just $100 risk for Comixology and who knows for the content creator. And this deal can make them lost of money collectively with other peoples content if more than a little goes right on each book. (Can people just withdraw cleanly from Comixolgy, curious ?)
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THE COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF, KNOWS OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100.
—–
All I’m sayiing is vet these things more ,this minutia is what whacks artists and creators for lifetimes of regret skipping over this step just to get on with the show. Sometimes you’ve got to sit down and do your homework , even skip a few TV shows if you must….. If all goes fine, swell…But a parts in this contract sets off some red lights. Not a lawyer or even particularly smart but I think the lesson of Alan Moore, Siegel, and the rest is too vet these things. Bob Kane’s dad did his homework and his son was rich for life for coming up with a great idea. Comixology is big now but its still an app, a well made one that gets lots of free publicity. But you can self publish and control more of your share, marketing still looks like its up to you…They may have other motives than just helping out creators. I’m not getting that vibe of generosity and partnership from the contract.
Bob Kane’s dad did his homework and his son was rich for life for coming up with a great idea.
>>
Not sure what that’s about. As I remember (the way Roy Thomas told it) Kane only got lifetime credit and bucks because he found a lawyer (in the late 60s) who threatened to torpedo the first Batman movie (the one based on the TV show) WB caved or otherwise Bob Kane might have ended up a doorman or proofreading in Stan’s office, alongside Siegel or Shuster.
+ “IN NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100.” … anybody wanna guess if WB or MRV/Disney signed on that ?
“Not sure what that’s about. As I remember (the way Roy Thomas told it) Kane only got lifetime credit and bucks because he found a lawyer (in the late 60s) who threatened to torpedo the first Batman movie (the one based on the TV show) WB caved or otherwise Bob Kane might have ended up a doorman or proofreading in Stan’s office, alongside Siegel or Shuster.”
May be part of it, btw I really enjoy Roy Thomas’s stories which I’ve been recently been listening via the podcasts on iTunes – provided by one of the posters here I think. (Jamie Coville? those are neat , comic con panel interviews & another note, please do that again for the next con, I’ll never go. Monaco is far,)
My information is from Bob Kane himself being interviewed by Stan Lee for his show “Comic Book Greats”, also from his documentary-both on YouTube. Talking about how his dad stepped in on his contract. Hence he was happy and his fortunes tied to Batman’s, no complaints.
+ “IN NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100.” … anybody wanna guess if WB or MRV/Disney signed on that ?
Ha! thats for sure….maybe comixology has the Amazon plan of attack. Forget about the margins and just be dominant till you’re the only game in town and no one else will even bother to play or think digital comics except with them. They are asking a lot from creators to go with their deal. those terms sound crummy once you look under the hood and you get no promises of marketing, Just saying,.
My information is from Bob Kane himself being interviewed by Stan Lee for his show “Comic Book Greats”, also from his documentary-both on YouTube.
>>
@johnrobiethecat:
Interesting — maybe that’s the reason Kane didn’t wind up like the other guys (Bob Finger, etc) who created this and that with Batman, and Kane’s father was the only reason Kane was ever in the position to make DC roll over (I think I told the story wrong in previous– I think, according to Thomas, was (pre-WB) DC that rolled over for Kane, not WB (although, I think, WB made that movie)– this was all before WB owned DC… who the heck knows??) I think that is one of the great, sobering comic books business stories I’ve heard, and I’ve been repeating it ever since I read the (Alter Ego?) where Thomas told it.. so hope there is some truth there / LOL.
Otherwise: The Comixology revenue split isn’t the most absurd deal I’ve ever heard, and if they become the next Amazon.. whatever… … What I don’t like are contracts that say stuff like, “NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100” — so if they make $1,000,000 and they don’t pay me I (at least according to what I’m being asked to agree to) have no recourse? .. I can’t say I remember ever reading such stuff in the fine print with any publisher I’ve worked with or Amazon or Paypal or Ebay or my bank or (etc). Do those guys actually have stuff like that in their contracts? .. like, basically, forget all the rest we say here… we really don’t have to give you the money we said earlier we would owe you (?) .. that’s not such legalese .. that’s pretty clear .. that’s the long and short of it, right ?
I gotta wonder why they’re deleting ads (if included) from the uploaded comics.
Can people just withdraw cleanly from Comixolgy, curious ?
>>
@johnrobiethecat:
Yeah .. what about that little detail ?
had to clarify these, Comixology contract feels a smokey on this:
1.DEFINITIONS.
As used in this License Agreement, the following terms shall have the meanings set forth below. Capitalized terms not defined below and defined in the above Content Submission Agreement shall have the meanings set forth therein:
1.11 “Licensed Work” has the meaning set forth in the preamble.
1.12 “Licensee” has the meaning set forth in the preamble.
————
now my websearch—-
(from http://itlaw.wikia.com/wiki/Licensor)
Licensor = Comic Creator
A licensor is one who transfers or create rights in or to certain property (usually intellectual property) in favor of a licensee under a license agreement.
Liscensee = Comixology
A licensee is one who is entitled by a license agreement to acquire or exercise certain rights in or to some property (usually intellectual property) owned or controlled by a licensor. A licensee obtains no ownership rights in the property that he or she receives under the contract.
COMIXOLOGY CONTRACT
-a more understandable version brought to your friends from the land of Monaco and the FIND & REPLACE feature. This should be a bit more understandable now it has the legalese curveballs renamed :-)
(Part 1 of 2)
——————–
Licensor = Comic Creator = [ INDEPENDENT CREATOR SCUM ]
Liscensee = Comixology = [ LORD COMIXOLOGY ]
BY SUBMITTING CONTENT TO COMIXOLOGY YOU ARE AGREEING TO THE TERMS OF THIS LEGALLY BINDING CONTRACT GOVERNING YOUR SUBMISSION OF CONTENT. IF COMIXOLOGY ACCEPTS YOUR WORK FOR DISTRIBUTION, YOU WILL, WITHOUT FURTHER ACTION ON YOUR PART, BE LEGALLY BOUND BY THE TERMS OF THE LICENSE AGREEMENT SET FORTH AS EXHIBIT 1 TO THIS CONTENT SUBMISSION AGREEMENT. YOU MUST READ THIS AGREEMENT, INCLUDING EXHIBIT 1, CAREFULLY BEFORE SUBMITTING ANY CONTENT TO COMIXOLOGY.
1. Parties
The parties to this Content Submission Agreement (this “Agreement”) are you (also referred to as “[ INDEPENDENT CREATOR SCUM ]”) and Iconology, Inc., a Delaware Corporation operating under the comiXology brand, and referred to herein as the “Company” or the “[ LORD COMIXOLOGY ]” (and together with you, the “Parties”). The Company may, in its sole discretion, assign its rights and/or delegate its duties under this Agreement. You may not assign your rights or delegate your duties, and any assignment or delegation without the written consent of the Company, which the Company may withhold in its sole discretion, shall be void. You are not eligible to enter into this Agreement unless you are old enough to have the legal capacity to enter into contracts.
2. Terminology
“Content” refers to any material that you submit to the Company, and includes metadata, logos, and trademarks. The terms “include,” “includes,” and “including” mean “include, without limitation,” “includes, without limitation,” and “including, without limitation,” respectively. “Agreement” includes the License Agreement (the “License Agreement”) set forth in Exhibit 1, as it may be amended from time to time pursuant to section 11.
3. Respect for Intellectual Property Rights
You may only submit Content that you have the full legal right to submit and license to the Company pursuant to this Agreement. The section below titled “Representations and Warranties” contains legally binding representations and promises that you are making to the Company regarding intellectual property rights and other matters. You will be liable to the Company if those representations and promises are not accurate either now or in the future.
4. Content Similar to Yours
You acknowledge that content similar or identical to the Content you submit (“Similar or Identical Content”) may have been or may in the future be submitted to the Company by other persons, or may have been or may in the future be made public by other persons. You agree that you are not entitled to any compensation, will not assert any claim against the Company, and the Company will not be liable to you, for any matter relating to such Similar or Identical Content, including the reproduction, sale, distribution, public display, public performance, exploitation of, and the making of derivative works based on such Similar or Identical Content. You acknowledge that it would not be feasible for the Company to provide a creator submission service without your agreement to the terms of this section 4.
5. Your Representations and Warranties
By submitting Content, you are representing to the Company and promising that you have intellectual property and any other applicable rights in and to the Content sufficient for you to submit the Content and to grant the License described in Exhibit 1 free of any third party claim of infringement or other violation of rights. If the Company accepts your Content for distribution, you will be making significant additional representations and promises, which are described under the title “Representations and Warranties” in Exhibit 1.
6. Your Indemnification Obligations
You will indemnify and defend the Company, its Affiliates, and their directors, officers, employees, agents, successors, and assigns against any losses, liabilities, claims, causes of action, and expenses (including reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to your submission of Content, including any matters arising out of or relating to any assertion that the Content (a) infringes the intellectual property rights of any third party, (b) is defamatory, (c) violates the rights of privacy or of publicity of any third party, (d) otherwise violates the rights of any third party, (e) requires the payment of royalties or fees of any type to any third party, or (f) violates any applicable laws or regulations.
7. Limitation on Company’s Obligations and Liability to You
THE CREATOR SUBMISSION SERVICE PROVIDED IN CONNECTION WITH THIS AGREEMENT IS PROVIDED AS IS WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THIS SERVICE IS AT YOUR OWN RISK.
THE COMPANY WILL NOT RETURN ANY CONTENT SUBMITTED TO IT WHETHER OR NOT SUCH CONTENT IS ACCEPTED FOR DISTRIBUTION. THE COMPANY IS NOT RESPONSIBLE FOR LOST OR DAMAGED CONTENT. THE COMPANY IS NOT RESPONSIBLE FOR, AND WILL HAVE NO LIABILITY FOR, ANY DAMAGE TO YOUR COMPUTER, DEVICE, OTHER HARDWARE OR SOFTWARE, OR FOR LOSS OF OR DAMAGE TO DATA RESULTING FROM YOUR USE OF THIS SERVICE.
THE COMPANY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF, KNOWS OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE LIABILITY OF THE COMPANY TO YOU EXCEED $100.
8. Company’s Discretion
Whether and to what extent the Company evaluates Content submitted by you, and whether to accept such Content for distribution, shall be in the Company’s sole discretion.
9. License Agreement
You agree that if the Company accepts your Content for distribution, you will, without further action on your part, be legally bound by the terms of the License Agreement set forth as Exhibit 1 to this Agreement. Such License Agreement is an integral part of this Agreement. Before submitting Content, you must read, understand, and be willing to accept the obligations, liabilities, and rights that you will have under the License Agreement. If your Content is accepted by the Company for distribution, you subsequently may be able submit Content through a publisher portal that may be made available to you by the Company in its sole discretion. This Content Submission Agreement, including the License Agreement, as either may be amended from time to time pursuant to section 11, will govern all Content submitted by you through the publisher portal.
10. Governing Law and Forum
This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without reference to any provisions of New York law that would result in the application of the law of any other State, country, or jurisdiction, and without reference to the U.N. Convention on Contracts for the International Sale of Goods. Any actions between the Parties arising out of or relating to this Agreement shall be brought only in the State and Federal courts located in Manhattan County, New York, and each Party hereby consents to the personal jurisdiction of those courts, waives any objection to venue in those courts, and consents to the dismissal of any action arising out of or relating to this Agreement that is brought in any other forum.
11. Amendments
The Company may, in its sole discretion, amend (change) the terms of the Content Submission Agreement, including the License Agreement, at any time and from time to time. Such amendments shall not apply to Content submitted before we disclosed such changes as provided for in this section. Submission by you of Content subsequent to disclosure of such changes shall constitute acceptance by you of the terms of the Content Submission Agreement, including the License Agreement, as amended.
We may disclose amendments through any method that provides you notice of such changes prior to your submission of new Content, including (a) through a pop-up dialogue box activated by your attempt to submit new Content, (b) through a notice posted on any screen you would encounter prior to submission of new Content, or (c) through email to the address associated with your account. In each case, such notice will provide you with a means (for example, a link) to review the changes.
12. Basis of the Bargain and Risk Allocations
The terms in this Agreement providing for a limitation or exclusion of liability or disclaimer of warranties are intended to allocate the risks of this Agreement between the Parties and are an essential element of the basis of the bargain between the Parties. You acknowledge that it would not be feasible for the Company to provide a creator submission service without these risk allocations.
13. Severability
If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect and the illegal, invalid, or unenforceable provision shall be amended to achieve as closely as possible the economic effect of the original term.
14. Captions
The title of and captions in this Agreement are for the convenience of the reader and shall not affect the interpretation of the Agreement.
15. Entire Agreement
This Agreement is the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, and representations, whether oral or written, regarding the subject matter hereof.
(Part 2A of 2)
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Licensor = Comic Creator = [ INDEPENDENT CREATOR SCUM ]
Liscensee = Comixology = [ LORD COMIXOLOGY ]
————–
EXHIBIT 1
LICENSE AGREEMENT
The Parties to this License Agreement (the “License Agreement”) are Iconology, Inc., a Delaware corporation with a principal place of business at 159 West 25th Street, 9th floor, New York, New York 10001 (“[ LORD COMIXOLOGY ]” or “Company”), and the submitter of Content pursuant to a Content Submission Agreement (“[ INDEPENDENT CREATOR SCUM ]”), each a “Party” and, collectively, the “Parties.” This License Agreement is effective when [ LORD COMIXOLOGY ] notifies [ INDEPENDENT CREATOR SCUM ] by email that the specific Content identified in such email (the “Licensed Work”) has been accepted by [ LORD COMIXOLOGY ] for distribution. With respect to such Licensed Work, this License Agreement and the above Content Submission Agreement shall supersede and replace any other agreements between the Parties that might otherwise apply to the Licensed Work.
The Parties, intending to be legally bound, agree that:
INTRODUCTION
A. [ INDEPENDENT CREATOR SCUM ] has submitted, and [ LORD COMIXOLOGY ] has accepted, the Licensed Work for distribution.
B. [ LORD COMIXOLOGY ] has developed, among other things, (i) software and other technology that enables users to purchase and read comic books or other literature through various devices, operating systems, and media, (ii) [ LORD COMIXOLOGY ] branded digital stores offering comic books and other literature available through one or more websites, mobile or tablet devices, and other devices, operating systems and media, and (iii) digital stores branded or co-branded by third parties offering comic books and other literature utilizing [ LORD COMIXOLOGY ]’s software and other technology and available through one or more websites, mobile or tablet devices, and other devices, operating systems and media.
C. [ INDEPENDENT CREATOR SCUM ] and [ LORD COMIXOLOGY ] believe it is in their mutual best interests for [ INDEPENDENT CREATOR SCUM ] to license to [ LORD COMIXOLOGY ] the Licensed Work for use in connection with [ LORD COMIXOLOGY ]’s software, technology, and digital stores on the terms set forth herein.
1.DEFINITIONS.
As used in this License Agreement, the following terms shall have the meanings set forth below. Capitalized terms not defined below and defined in the above Content Submission Agreement shall have the meanings set forth therein:
1.1 “Affiliates” of a person means persons controlled by such person, the persons who control such person, or persons under common control with such person.
1.2 “License Agreement” has the meaning set forth in the preamble.
1.3 “Art Work” has the meaning set forth in Section 2.2.
1.4 “Comics Store” means, collectively, all digital stores owned or controlled by or on behalf of [ LORD COMIXOLOGY ], now or in the future, that, in each case, enables users to purchase and read comic books or other literature through any device, operating system, and/or media, whether existing now or in the future, including, without limiting the generality of the foregoing, the Company Affiliate Sites.
1.5 “comiXology” and “Comixology” each mean the software and other technology owned, controlled, or provided by [ LORD COMIXOLOGY ] (whether branded by [ LORD COMIXOLOGY ] or a third party), now or in the future, that would allow users to purchase and read comic books or other literature through devices, operating systems, or media, whether existing now or in the future, including, but not limited to, operating systems for mobile or tablet devices.
1.6 “Company” has the meaning set forth in the preamble.
1.7″ Company Affiliate Sites” means websites provided by [ LORD COMIXOLOGY ] and accessed through the websites of [ LORD COMIXOLOGY ]’s third-party marketing or distribution partners.
1.8 “Effective Date” has the meaning set forth in the preamble.
1.9 “Force Majeure Event” has the meaning set forth in Section 9.1.
1.10 “Initial Term” has the meaning set forth in Section 5.1.
1.11 “Licensed Work” has the meaning set forth in the preamble.
1.12 “[ LORD COMIXOLOGY ]” has the meaning set forth in the preamble.
1.13 “[ INDEPENDENT CREATOR SCUM ]” has the meaning set forth in the preamble.
1.14 “Net Sales” means gross revenues from the sale of the Licensed Work, less fees payable to any channel partner or distributor of comiXology (for example, various App stores) with respect to the sale of the Licensed Work, credit card and other transaction fees, affiliate fees payable for sales on the Internet, returns, credits, and any value added, sales, or other taxes or governmental charges that are stated separately or collected substantially contemporaneously with the sale of the Licensed Work. In the case of end user sales denominated in currencies other than U.S. Dollars, Net Sales shall be calculated using the amounts in U.S. Dollars remitted to [ LORD COMIXOLOGY ] by the channel partner making such remittance and/or actually received by or paid by [ LORD COMIXOLOGY ] in U.S. Dollars after currency translation.
1.15 “Term” has the meaning set forth in Section 5.1.
1.16 “Parties” has the meaning set forth in the preamble.
1.17″Party” has the meaning set forth in the preamble.
1.18 “Renewal Term” has the meaning set forth in Section 5.1
1.19 “Use” has the meaning set forth in section 2.1.
2. GRANT OF LICENSE, RIGHTS AND OBLIGATIONS.
2.1 [ INDEPENDENT CREATOR SCUM ] hereby grants to [ LORD COMIXOLOGY ] for the Term, and following the Term solely as authorized in Section 6.2, the worldwide, non-exclusive license and right (the “License”) to use, store, reproduce, distribute, publicly display, format for comiXology, and sell (collectively, “Use”) the Licensed Work through any and all versions of comiXology and the Comics Store, in each case as they exist now or in the future, through any device, operating system, and media, existing now or in the future.
2.2 The License shall also include [ LORD COMIXOLOGY ]’s right to Use all artwork and other content developed by or on behalf of [ INDEPENDENT CREATOR SCUM ] (or excerpts therefrom) that is related to the Licensed Work (for example, comic book covers or titles, character likenesses, curated content, advertising material, [ INDEPENDENT CREATOR SCUM ] name, icon, trademarks) (collectively, the “Art Work”) in connection with [ LORD COMIXOLOGY ]’s sales and marketing of the Comics Store.
2.3 [ LORD COMIXOLOGY ] may, in its sole discretion, provide functionality in the Comics Store that enables users to share with third parties of their choosing, including social media, the cover of, and up to five pages or portions thereof from, any Licensed Work to which they have authorized access. The parties acknowledge that [ LORD COMIXOLOGY ] has no ability to limit the screen shot capabilities of users’ devices.
2.4 [ LORD COMIXOLOGY ] shall be entitled to provide to the users of the Comics Store a partial issue for each Licensed Work at no cost to users or [ LORD COMIXOLOGY ]. Such partial issue will not comprise more than twenty percent (20%) of the pages of the Licensed Work.
2.5 [ INDEPENDENT CREATOR SCUM ] shall determine the pre-tax sale price of the Licensed Work to be distributed or sold by [ LORD COMIXOLOGY ] pursuant to this License Agreement, subject to the following: (a) to accommodate technical requirements of [ LORD COMIXOLOGY ]’s pricing mechanism, prices will begin at $0.99 and increase in $1.00 increments, (b) [ INDEPENDENT CREATOR SCUM ] will not set a sale price for the Licensed Work higher than the sale price for the Licensed Work on any other channel for which [ INDEPENDENT CREATOR SCUM ] sets prices, and (c) [ LORD COMIXOLOGY ] shall have the right to reduce its price for the Licensed Work to the competing price the Licensed Work is available for on any other channel or to the next lowest price feasible under the technical requirements of [ LORD COMIXOLOGY ]’s pricing mechanism and shall have the right to offer the Licensed Work for free to meet similar competing offers for the Licensed Work.
2.6 If [ LORD COMIXOLOGY ] has licensed more than one Licensed Work to [ INDEPENDENT CREATOR SCUM ], [ INDEPENDENT CREATOR SCUM ] shall have the right to “bundle” such Licensed Works for sale in the form of virtual trade paperbacks or otherwise, at such discounts to the individual sales price of such Licensed Works (if sold separately) as shall be determined by [ LORD COMIXOLOGY ] in its sole discretion.
2.7 [ LORD COMIXOLOGY ] shall have the right to sell Licensed Works series consisting of multiple future installments of a Licensed Work at such discounts to the price of the individual installments, as [ LORD COMIXOLOGY ] shall determine in its sole discretion.
2.8 [ LORD COMIXOLOGY ], in its sole discretion, will determine from time to time whether or not to offer the Licensed Work for sale, the platforms and channels, if any, on which to offer the Licensed Work, and without limiting the generality of the foregoing, may at any time remove from any channel or platform any Licensed Work that violates the standards of such channel or platform or that [ LORD COMIXOLOGY ], in its sole discretion, considers to be inappropriate for any portion of the audience or users of such channel or platform.
3. OWNERSHIP.
3.1 [ LORD COMIXOLOGY ] shall own all right, title, and interest in and to Comixology and the Comics Store, including, without limitation, all related copyrights, trademarks, trade names, and trade dress, and customer information, excluding the Licensed Work or [ INDEPENDENT CREATOR SCUM ] trade names or trademarks. Without limiting the generality of the foregoing, [ INDEPENDENT CREATOR SCUM ] shall not, and shall not attempt, to copy, replicate, modify, reverse engineer, distribute, sell, or allow third parties to access any of the tools or technology made available to [ INDEPENDENT CREATOR SCUM ] by [ LORD COMIXOLOGY ].
4. PAYMENT.
4.1 [ LORD COMIXOLOGY ] shall pay to [ INDEPENDENT CREATOR SCUM ] a fee for all of the rights and licenses granted under this License Agreement, as set forth in Schedule A.
5. TERM; TERMINATION.
5.1The License shall have an initial term (the “Initial Term”) of five (5) years commencing as of the Effective Date. Immediately following the termination of the Initial Term, the License Agreement shall automatically renew for successive one (1)-year terms (each a “Renewal Term”), unless either Party gives the other written notice of non-renewal no later than sixty (60) days prior to the commencement of a Renewal Term. The Initial Term and the Renewal Terms (if any) are, collectively, the “Term.”
5.2 This License Agreement may be terminated by either Party if the other Party is in material breach of the terms of this License Agreement and does not cure said breach within thirty (30) days following written notice of such breach. Termination shall be in addition to any other remedies available with respect to the underlying facts.
(Part 2B of 2)
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Licensor = Comic Creator = [ INDEPENDENT CREATOR SCUM ]
Liscensee = Comixology = [ LORD COMIXOLOGY ]
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6. RIGHTS AND DUTIES RELATING TO TERMINATION.
6.1 If this License Agreement is terminated by [ INDEPENDENT CREATOR SCUM ] for material, uncured breach by [ LORD COMIXOLOGY ], [ LORD COMIXOLOGY ] agrees, subject to its rights pursuant to Section 6.2, to (a) cease all Uses of the Licensed Work; (b) at [ LORD COMIXOLOGY ]’s option, either destroy or deliver to [ INDEPENDENT CREATOR SCUM ], free of any charge to [ INDEPENDENT CREATOR SCUM ], all copies of the Licensed Work in [ LORD COMIXOLOGY ]’s possession; (c) at [ INDEPENDENT CREATOR SCUM ]’s request, provide the certification of an officer of [ LORD COMIXOLOGY ] to the effect that this section has been fully complied with; and (d) make all payments due and owing to [ INDEPENDENT CREATOR SCUM ] as defined in Schedule A.
6.2 [ LORD COMIXOLOGY ]’s Rights of Use Following the Term. Notwithstanding the expiration or termination (by [ INDEPENDENT CREATOR SCUM ] or [ LORD COMIXOLOGY ]) of this License Agreement, whether for material breach or otherwise, [ LORD COMIXOLOGY ] shall have the right to retain, store, publicly display, reproduce, and distribute copies of the Licensed Work and Art Work previously sold or distributed to fulfill the ‘buy once, read anywhere’ proposition for the benefit of such distributes and their successors, or to provide replacement copies of the Licensed Work and/or Art Work in the event of loss, damage, or corruption of previously distributed Licensed Work or Art Work. The Parties agree that there would be no adequate remedy at law in the event of a breach of [ LORD COMIXOLOGY ]’s rights under this section 6.2, and that [ LORD COMIXOLOGY ] would be entitled to specific performance of its rights under this section without any requirement that it post a bond.
7. INDEMNIFICATION
7.1. Indemnification by [ INDEPENDENT CREATOR SCUM ]. [ INDEPENDENT CREATOR SCUM ] will indemnify and defend [ LORD COMIXOLOGY ], its Affiliates, and their directors, officers, employees, agents, successors, and assigns against any losses, liabilities, claims, causes of action, and expenses (including, but not limited to, reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to any assertion that the Licensed Work or Art Work or the License or other transactions contemplated hereunder (a) infringe the intellectual property rights of any third party, (b) are defamatory, (c) violate the rights of privacy or of publicity of any third party, (d) or otherwise violate the rights of any third party, (e) require the payment of royalties or fees of any type to any third party, or (f) by virtue of the content thereof violate any applicable laws or regulations.
7.2. Indemnification by [ LORD COMIXOLOGY ]. [ LORD COMIXOLOGY ] will indemnify and defend [ INDEPENDENT CREATOR SCUM ], its Affiliates, and their directors, officers, employees, agents, and successors against any losses, liabilities, claims, causes of action, and expenses (including, but not limited to, reasonable attorneys fees and costs of investigation, whether before or after assertion of a formal claim, and reasonable litigation expenses) arising out of or relating to any assertion that [ INDEPENDENT CREATOR SCUM ] does not have intellectual property rights in and to Comixology and the Comics Store necessary to Use the Licensed Work or Art Work as contemplated under this License Agreement.
7.3 Notice of Suit. In the event either Party is named as a defendant in any legal action for which it claims indemnity hereunder, it agrees to notify the indemnifying Party within five (5) business days of service on it of such legal action. If [ LORD COMIXOLOGY ] is the indemnifying party, it shall have the right, but not the obligation, to assume control and direct the defense of such action, including, without limitation, the right to select defense counsel. [ INDEPENDENT CREATOR SCUM ] as indemnifying party shall have no right to control or direct the defense of any action.
8. REPRESENTATIONS AND WARRANTIES.
8.1 [ INDEPENDENT CREATOR SCUM ]’s Representations and Warranties. [ INDEPENDENT CREATOR SCUM ] represents and warrants, that (i) if [ INDEPENDENT CREATOR SCUM ] is not a natural person, it is duly organized and validly existing under the laws of the relevant jurisdiction, with full organizational authority to enter into and perform this License Agreement, (ii) [ INDEPENDENT CREATOR SCUM ] has the legal capacity to enter into, be bound by, and perform this License Agreement, and, if [ INDEPENDENT CREATOR SCUM ] is not a natural person, the execution, delivery, and performance of this License Agreement by [ INDEPENDENT CREATOR SCUM ] is duly authorized, (iii) entry into and performance of this License Agreement will not (and would not, after the giving of any required notices and the expiration of any required time periods) violate or constitute a default or event of default under any statute, regulation, judgment, order, contract or other legal authority to which [ INDEPENDENT CREATOR SCUM ] is subject, (iv) [ INDEPENDENT CREATOR SCUM ] has and will maintain throughout the Term intellectual property rights in and to the Licensed Work and the Art Work sufficient for it to grant the License herein free of any third party claim of infringement or other violation of rights, (v) Use of the Licensed Work and Art Work as contemplated herein will not violate, by way of infringement or otherwise, the rights of any third party or require the payment of royalties or fees of any sort by [ LORD COMIXOLOGY ] to any third party, and (vi) the content of the Licensed Work and Art Work will not violate the laws of the United States, any State thereof, or any country within the European Economic Area, and, to the best of [ INDEPENDENT CREATOR SCUM ]’s knowledge, will not violate the laws of any other jurisdiction.
8.2 [ LORD COMIXOLOGY ]’s Representations and Warranties. [ LORD COMIXOLOGY ] represents and warrants that (i) [ LORD COMIXOLOGY ] is duly organized and validly existing under the laws of the State of Delaware, with full organizational authority to enter into and perform this License Agreement, (ii) the execution, delivery, and performance of this License Agreement by [ LORD COMIXOLOGY ] is duly authorized, (iii) its entry into and performance of this License Agreement will not (and would not, after the giving of any required notices and the expiration of any required time periods) violate or constitute a default or event of default under any statute, regulation, judgment, order, contract or other legal authority to which it is subject, and (iv) it has intellectual property rights in and to comiXology, and the Comics Store sufficient for it to Use the Licensed Work and Art Work as contemplated herein free of any third party claim of infringement or other violation of rights based on a claim of rights in comiXology or the Comics Store.
9. FORCE MAJEURE.
9.1 Notwithstanding any provision of this License Agreement to the contrary, if [ INDEPENDENT CREATOR SCUM ] or [ LORD COMIXOLOGY ] is delayed, hindered in or prevented from, in whole or in part, performing any of their respective obligations under this License Agreement (except for payment obligations) by reason of any fire, strike, civil commotion, lock-out, labor dispute, law, rule, proclamation or governmental regulation, insurrection, war, public disaster, flood, unavoidable casualty, act of God or the elements, earthquake, vandalism, sabotage or failure of power (a “Force Majeure Event”), then the Party so affected shall be excused from its performance hereunder solely for the duration of such Force Majeure Event until the completion of the remedial activity in response to the Force Majeure Event and the time for performance shall be extended for a period equal to the duration of the Force Majeure Event and such remedial period; provided, that if a Force Majeure Event shall extend for more than ninety (90) days, the License Agreement may be terminated immediately on notice given by either Party, without liability incurred to the other Party as a result of such termination. In order to avail themselves of the foregoing provisions, each Party shall promptly notify the other of the occurrence of any such Force Majeure Event.
10. LIMITATION OF LIABILITY.
10.1 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS CONTAINED IN THIS LICENSE AGREEMENT, A PARTY’S FRAUD, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, OR ANY PERSONAL INJURY OR PHYSICAL PROPERTY DAMAGE CAUSED BY EITHER PARTY, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF, KNOWS OF, OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS LICENSE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
10.2 No Personal Liability. None of the Parties’ officers, directors, employees, and agents, acting within the scope of their employment, shall be liable to the other Party for monetary damages for any matters arising out of or relating to this License Agreement.
11. MISCELLANEOUS.
11.1 Entire License Agreement. This License Agreement is the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, and representations, whether oral or written, regarding the subject matter hereof.
11.2 Amendments. This License Agreement may be amended as to the Licensed Work only by a written instrument signed on behalf of the Parties by their duly authorized representatives. [ INDEPENDENT CREATOR SCUM ] understands and agrees that Content submitted by [ INDEPENDENT CREATOR SCUM ] in the future pursuant to the Content Submission Agreement shall be subject to the terms of the Content Submission Agreement and related License Agreement offered by [ LORD COMIXOLOGY ] at the time of such submission, which may, in [ LORD COMIXOLOGY ]’s sole discretion, be different than this License Agreement and related Content Submission Agreement.
11.3 Successors and Assigns. This License Agreement binds and benefits the successors of the Parties. [ INDEPENDENT CREATOR SCUM ] may not assign [ INDEPENDENT CREATOR SCUM ]’s rights or delegate [ INDEPENDENT CREATOR SCUM ]’s duties, and any assignment or delegation without the written consent of [ LORD COMIXOLOGY ], which [ LORD COMIXOLOGY ] may withhold in its sole discretion, shall be void. [ LORD COMIXOLOGY ], may, in its sole discretion, assign its rights and/or delegate its duties under this Agreement.
11.4 No Partnership or Joint Venture. In making and performing this License Agreement, [ INDEPENDENT CREATOR SCUM ] and [ LORD COMIXOLOGY ] act and shall act at all times as independent contractors and nothing contained in this License Agreement shall be construed or implied to create an agency, joint venture or partnership relationship between the Parties. At no time shall either Party make commitments or incur any charges or expenses for or in the name of the other except as expressly provided for herein.
11.5 Survival. For avoidance of doubt, after the termination (for material breach or otherwise) of this License Agreement, the rights and obligations of the Parties relating to the License, Licensed Work and Art Work (including, but not limited to, payment obligations under Schedule A, indemnification obligations, and all representations and warranties) will be governed by the terms of this License Agreement regardless of whether such terms have been expressly specified to survive.
11.6 Choice of Law; Forum. This License Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without reference to any provisions of New York law that would result in the application of the law of any other State, country, or jurisdiction, and without reference to the U.N. Convention on Contracts for the International Sale of Goods. Any actions between the Parties arising out of or relating to this License Agreement shall be brought only in the State and Federal courts located in Manhattan County, New York, and each Party hereby consents to the personal jurisdiction of those courts, waives any objection to venue in those courts, and consents to the dismissal of any action arising out of or relating to this License Agreement that is brought in any other forum.
11.7 Notice. Any notice required or permitted to be given hereunder shall be given by email to the addresses specified below. Notice by such emails shall be deemed given on the date of transmission of during normal business hours, if a copy of the sent item showing the date and time of transmission is preserved and no notice of non-delivery is received (if so transmitted electronically after normal business hours such notice shall be deemed given on the succeeding day). Any notice shall be delivered as follows:
If to [ INDEPENDENT CREATOR SCUM ]: to the email address associated with [ INDEPENDENT CREATOR SCUM ]’s account related to the Content Submission Agreement.
If to [ LORD COMIXOLOGY ]: to [email protected], with a copy to [email protected].
11.8 Provisions Severable. If any provision of this License Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this License Agreement shall be unimpaired and remain in full force and effect, and the illegal, invalid or unenforceable provision shall be amended to achieve as closely as possible the economic effect of the original term.
11.9 No Waivers. Failure by a Party in any instance to insist upon the strict performance of any term or condition of this License Agreement or to exercise any right or remedy consequent upon a breach hereof shall not waive such term or condition or impair such right or remedy with respect to any other instance.
11.10 Titles and Captions. Titles and captions are for convenience only and shall not affect the interpretation hereof.
11.11 Interpretation. This License Agreement shall be interpreted in accordance with its terms, and no convention regarding the interpretation of contracts based on who drafted the contract shall apply.
(Part 2C of 2) – that’s it/the end
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Licensor = Comic Creator = [ INDEPENDENT CREATOR SCUM ]
Liscensee = Comixology = [ LORD COMIXOLOGY ]
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SCHEDULE A
PAYMENTS AND FEES
1. Fees. For each partial or full calendar quarter of the Term, Company shall remit to [ INDEPENDENT CREATOR SCUM ], by the 45th day following the end of each calendar quarter of the Term or the first business day thereafter if the 45th day falls on a federal holiday in the United States or a state holiday in the State of New York or a weekend, the royalty (the “Royalty”) described below, for the then-ended calendar quarter:
Fifty percent (50%) of Net Sales for each Licensed Work sold during such quarter.
2. Method of Payment. The Royalty payment shall be made in U.S. Dollars via electronic fund transfer (“EFT”), or, if such wire transfer is not feasible, such other method as may reasonably substitute therefor. The paying Party shall be responsible for any costs charged by its bank for initiating an EFT and the payee Party shall be responsible for any costs deducted by its bank, financial institution or payment receipts provider for receipt of an EFT. Each Party shall provide all tax documentation reasonably requested by the other or as required by law.
3. Minimum Balance. Payments to [ INDEPENDENT CREATOR SCUM ] shall be made when the Royalty amount due [ INDEPENDENT CREATOR SCUM ] equals or exceeds $100.00 (the “Minimum Balance”). If the amount of the Royalty due [ INDEPENDENT CREATOR SCUM ] is less than the Minimum Balance, then the payment of the Royalty will be held until a subsequent calendar quarter during which the Minimum Balance is reached. Failure to reach the Minimum Balance shall not result in forfeiture of the Royalty due to [ INDEPENDENT CREATOR SCUM ], and such Royalty less than the Minimum Balance shall be paid by [ LORD COMIXOLOGY ] at such time or times and in such manner as [ LORD COMIXOLOGY ] may determine in its sole discretion.
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– the end-
Now hit the submit button!!!!!!
INDEPENDENT CREATOR SCUM / LORD COMIXOLOGY
>>
I don’t think it’s productive to put make these sort of judgements but rather to focus on what we see in this contract (AKA: It’s just business) :
“…THE CREATOR SUBMISSION SERVICE PROVIDED IN CONNECTION WITH THIS AGREEMENT IS PROVIDED AS IS WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF TITLE, NON-INFRINGEMENT… ”
My analysis:
(since WARRANTIES = Promise) You are basically waving rights to your property by submitting, in that you are otherwise agreeing that the company may infringe on you property (from that point on) as it sees fit. Put another way: Once you give someone the right to infringe (thesaurus.com: synonyms: Infringement = pirate / steal) on your property, how is it that you still own anything?
Otherwise: I do now see the (five year) TERMINATION thing (oh boy!).
“INDEPENDENT CREATOR SCUM / LORD COMIXOLOGY
>>
I don’t think it’s productive to put make these sort of judgements but rather to focus on what we see in this contract (AKA: It’s just business) :”
It required 4-5 very long posts to show this contract, if they were deleted by the Beat, I would completely understand…. But if you were to trying to read this before sacrificing your digital rights to an app – in the hope of some marketing benefit, you would lose track of who’s the “Liscensor” & “Liscensee” very easily (closely worded I should add) and that’s intentionalsince lawyers can get away with it in an all purpose contract at your expense,. Find & replaceI made it somewhat more readable. And that’s not just business, thats subterfuge. And since 9/10th ‘s of Congress are ex-lawyers, the ruse goes on and we put up with it….. “Just business” is probably used by DC and Marvel a lot, especially when Marvel used to print a loss of rights contract on the back paychecks to freelancers in the 70’s to keep it “just business”. The tradition continues….
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Marvel fired back in 2010, accusing Friedrich of violating its trademark by using the phrase “Ghost Rider” and selling unauthorized posters, cards and T-shirts online and at comic conventions. In December 2011, a federal judge rejected Friedrich’s lawsuit, finding the writer gave up ownership to the property when he endorsed checks that contained language relinquishing rights to Marvel’s predecessors. The judge said Friedrich signed over all claims to the character in 1971 and again in 1978 in exchange for the possibility of more freelance work for the publisher. Two months later, Marvel agreed to abandon its countersuit if Friedrich would pay $17,000 in damages and stop selling unauthorized Ghost Rider merchandise, a move that drew sharp criticism from creators and fans alike.
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http://robot6.comicbookresources.com/2012/07/gary-friedrich-appeals-ghost-rider-ruling/
@johnrobiethecat:
I understand what you’re saying — and “It’s just business” can be, was and is what you describe — but IT’S ALSO A TWO WAY STREET –and that was my point before.. so if you’re an artist or a writer: Next time someone tries to bully you into agreeing to something which your gut tells you that you shouldn’t, just say (or maybe just think to yourself) .. “It’s just business” … eventually you will notice .. they will shut up :) .. on the other hand .. if all you want to be is an employee (for a day or for the rest of your life) .. going ahead and sign up.
@horatio
Good advice.
I appreciate the reporting of this new to me publishing option. I have myself turned to Kindle Direct Publishing to publish a novella (The Revolutionary) and a short story (Twice).
I don’t think I’ve seen over 20 bucks.
Publishers and distributors are desirable for footing the book tours and getting you on the radio.
Comments are closed.