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Electronic Publishing AgreementPage 1 of 14 Electronic Publishing Agreement Agreement made on the day of , 20 , between , a corporation organized and existing under the (Name of Developer) laws of the state of , with its principal office located at (Name of State) , referred to herein as Developer, and (Street Address, City, County, State, Zip Code) of , (Name of Author) (Street Address, City, County, State, Zip Code) referred to herein as Author. Whereas, Author is the author and/or owner of the certain printed materials; and Whereas, Developer is a developer of interactive software products; and Whereas, Author desires Developer to prepare an interactive software version of Author's printed materials; Now, therefore, in consideration of the obligations and agreements set forth in this Agreement and other good and valuable consideration, the receipt and adequacy of which are acknowledged, Developer and Author agree as follows: I. Definitions. A. Concept Document means the functional specifications of the Product, as agreed by Developer and Author in accordance with Section II.B below, describing the features and functionality of the Product. B. Confidential Information means the confidential and valuable information of a party which the party desires to protect against disclosure or competitive use and whic h is in written form or is disclosed orally, and is designated either orally or in writing a s being proprietary or confidential. Developer's Confidential Information includes, without limitation, the Software and all information and documentation relating to this Agreement. C. Development Schedule means the schedule for the development of the Concept Document and the Product attached as Schedule I.C. D. End User means a customer of Author who is authorized by an end user license agreement as specified in Section V.B to use the Product for the End User's personal or internal business purposes. Electronic Publishing AgreementPage 2 of 14 E. Intellectual Property Rights means patent rights, copyright rights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, and any and all other intellectual property rights recognized by the law of the applicable jurisdiction. F. Author Content means the written work known as (Name of Work) and such other written materials owned or to be prepared by Author, which Author will deliver to Developer for inclusion in the Product, or which Developer shall prepare or have prepared under this Agreement, each as more particularly described in Schedule I.F. G. Net Revenues means all gross receipts from any transfers (including shipments) or licenses of copies of the Product to End Users by Author or any sub-distributor, less freight, insurance, other shipping fees, and returns. H. Product means the object code version of the software product which includes certain components of the Software and the Author Content and which conforms to the Concept Document. I. Software means Developer's proprietary computer software as more particularly described in Schedule A. II. Development of the Product; Delivery and Acceptance. A. Authorized Representatives. The authorized representative for Developer is . The authorized representative for Author (Name of Developer’s Representative) is . All discussions involving changes in the (Name of Author’s Representative) Concept Document shall be conducted between these persons (except, as to either pa rty, that such party may designate an alternate representative in writing) and any agreem ent on significant changes to the Concept Document shall be reduced to a writing signed by each of the authorized representatives. B. Concept Document. Developer will design and develop the Concept Document and deliver the Concept Document to Author for its review and approval on or before the applicable milestone date in the Development Schedule. Author shall review the C oncept Document and prepare a written report to Developer listing any reasonable modifications or changes to the Concept Document. Upon receiving such report, Developer will use its best efforts to promptly revise and modify the Concept Document in accordance with the report. The above procedure will be repeated until Author accepts the Concept Document; provided, however, that if after repeated attempts Developer is unable to modify the Concept Document in a manner satisfactory to Author, Developer may terminate this Agreement, and upon such termination Developer shall return to Author Electronic Publishing AgreementPage 3 of 14 any fees previously paid to Developer under this Agreement, except amounts paid to Developer on a time and materials basis. C. Developer to Develop. Upon Author's acceptance of the Concept Document, Developer will create, design, develop, and deliver the Product in accordance with the Development Schedule. Any delays in Developer's performance caused by Author's failure to deliver any Author Content in accordance with the Development Schedule, or as a result of changes or modifications to the Concept Document requested by Author (either prior to or following Author's acceptance of the Concept Document), shall not constitute a breach of this Agreement by Developer. D. Author Development Review. During Developer's development of the Product, Author shall be entitled to review, at its sole expense, Product components at the milestone dates listed in the Development Schedule. Developer will work in good faith with Author to implement modifications or changes to the Product components suggested by Author and to correct any errors in such components that Author may discover; however, the parties agree and acknowledge that Developer shall be responsible for managing all aspects of the Product development and may determine in its sole discre tion not to implement such modifications or changes or not to correct any such errors at that point in the development cycle. E. Acceptance of Product by Author. 1.Developer shall deliver the final Product to Author on or before , as set forth in the Development Schedule. For purposes of (Date) this Section II.E, the Product will be deemed delivered when actually received by Author. 2. Acceptance of the Product by Author shall not be unreasonably withheld and will be deemed to have taken place on the first to occur of any of the following: a.Author uses the Product or any part or component of it or any related user documentation for purposes of demonstration or sale, or licenses or otherwise ships the Product to sub-distributors or End Users; or b. Ten (10) days have elapsed from the date of delivery without Author having given Developer written notice of a material failure of the Product to substantially conform to the Concept Document, provided, however that minor nonconformities with the Concept Document which do not substantially impair the performance of the Product shall not constitute a failure of the Product to conform to the Concept Document; or c. Author notifies Developer in writing that it accepts the Product. Electronic Publishing AgreementPage 4 of 14 3.In the event that Developer receives a notice from Author of a material failure of the Product to substantially conform to the Concept Document, Developer shall attempt through best efforts to correct the nonconformance. The corrected Product shall be delivered to Author for acceptance pursuant to this Section II.E. If Developer cannot, after repeated efforts, remedy such nonconformance, Developer may terminate this Agreement provided that Developer returns to Author any fees previously paid to Developer under this Agreement, except amounts paid to Developer on a time and materials basis. III. License. A. Grant of License by Author. Author grants to Developer a non-exclusive right and license to use the Author Content solely for the purpose of developing the Product, and supporting, updating and enhancing the Product (to the extent provided in this Agreement). Developer may edit, alter, or modify the Author Content as may be necessary to create or develop the Product in accordance with the Concept Document. Developer may make such copies of the Author Content as may be necessary to creat e or develop the Product. B. Grant of License by Developer. Developer grants Author a non-exclusive, non- transferable, world-wide, perpetual (subject to termination in accordance with Section XII ) license to market, distribute, and sublicense the Software, as incorporated into or referenced by the Product, in object code form, to End Users, directly and indirectly. C. Bundled Products. Author may not combine or bundle the Product with other products without a prior written approval of Developer. D. Reproduction. Subject to the terms of this Agreement, Developer grants Author a perpetual (subject to termination in accordance with Section XII), non-transferable license to reproduce the Software as incorporated into or referenced by the Product for distribution pursuant to Section III.B. IV. Proprietary Rights. A. Developer Authorship. Except for the limited licenses and rights granted under this Agreement, the Software and all Intellectual Property Rights and the Developer Trademarks are, and as between the parties shall at all times remain, the sole and exclusive property of Developer. The rights and licenses granted to Author under this Agreement with respect to the Software shall in no way restrict Developer's rights in the Software or any Intellectual Property Rights, nor will it limit or prevent Developer from using, licensing, distributing, selling, or otherwise transferring the Software (or any portion of it) or any Intellectual Property Rights in any manner as Developer deems appropriate. Author's sole rights with respect to the Software are as set forth in Sections III.B and III.D. B. Intellectual Property Rights Notices. Author will place the Intellectual Property Rights notices reasonably requested by Developer, if any, on the Product, the Product packaging, and any documentation delivered to sub-distributors or End Users together Electronic Publishing AgreementPage 5 of 14 with the Product and will reproduce and display such notices on each copy it makes (or has made) of the Product. C. Author Ownership. Subject to Developer's ownership rights as set forth in Section IV.A above (and at all times subject to the licenses granted under Sections III.B and III.D ), the Author Content and the Product are, and as between the parties shall remain, the property of Author. D. Third Party Infringement. Developer and Author each reserve the right at its discretion to assert claims against third parties for infringement or misappropriation of its Intellectual Property Rights in the Product. Developer and Author will promptly notify the other of any claims that the Product infringes any third party's Intellectual Propert y Rights. V. Distribution and Exclusivity. A. Marketing and Distribution of the Product. Author shall (i) market the Product in a commercially reasonable manner, as more particularly described in Schedule V.A, and (ii) use its best efforts to promote, license, and distribute the Product to End Users. The costs of such marketing, promoting, licensing, and distribution shall be borne solely by Author. B. End User Agreement. Author may not distribute the Product to any End User unless such End User is subject to a shrink-wrap end user software license agreement with Author that protects Developer's proprietary rights in the Product to at least the sa me degree as the terms and conditions of Developer's shrink-wrap end user software license agreement, a copy of which is attached as Schedule B. C. Subdistribution. Author may distribute the Product through such subdistributors as Author deems appropriate. In all cases, subdistributors of Author are subject to the terms and conditions of this Agreement. Author shall require, by written contract, that each of its subdistributors comply with Author's obligations under this Agreement as if such subdistributor stood in the position of Author, except that Author shall be solely responsible for making all payments to Developer under this Agreement. D. Trademarks. The parties agree and acknowledge that the Product may be advertised, marketed, licensed, and distributed under Author's brand name; provided however, that the Product, the packaging of and documentation relating to the Product, and the marketing materials and advertisements for the Product, clearly indicate to consumers through the use of Developer's trade name and its proprietary trademarks that the Product was developed by Developer and utilizes Developer's proprietary technology. In connection therewith, Developer grants Author and its authorized subdistributors a nonexclusive license to use the following trade names and trademarks (the Developer Trademarks ) on the Product, its packaging, and documentation and in any related marketing materials and advertisements: Electronic Publishing AgreementPage 6 of 14 (List of trademarks) Author's use of the Developer Trademarks shall be in accordance with and subject to such written specifications and policies regarding the use of the Developer Trademarks by third parties as Developer may from time to time make available to Author. Upon termination of this Agreement, except as otherwise specifically set forth in this Agreement, Author will no longer make any use of the Developer Trademarks. VI. Development Payments and Royalty Payments. A. Development Payments. Author shall pay Developer the amounts set forth in the Development Schedule at the times set opposite such amounts (each a Development Fee and collectively the Development Fees). The parties acknowledge that prior to the execution of this Agreement Developer has been providing services to Author in connection with development of the Product on a time and materials basis (“ T & M Payments ). As of the Effective Date, the amount of such T & M Payments which have been made or which are due and owing is $ . B. Advances Credited Against Royalties. Author may credit the Development Fees and T & M Payments (collectively, the Advances) against any royalties due to Developer under Section VI.C until the full amount of the Advances have been credited against such royalties. C. Royalties. Author shall pay Developer royalties of % of the Net Revenues. Subject to Section III.C, if the Product is distributed in a bundle with other products, the royalties will be $ for each copy of such Product distributed in a bundle to an End User. D. Payment Terms. Royalties shall be payable by Author to Developer on a monthly basis for so long as the Product is transferred or licensed to End Users as follows: Author shall pay to Developer royalties with respect to transfers or licenses of copies of the Product made during each calendar month within thirty (30) days following the close of the month in which the transfer or license occurs. The first royalty payme nt shall be made to Developer within thirty (30) following the close of the month in which the first copy of the Product is transferred or licensed to an End User. Failure to make any such royalty payment shall constitute a material breach of this Agreement. E. Reports. Within thirty (30) days following the close of each calendar quarter, commencing with the close of the calendar quarter in which the first copy of the Product is transferred or licensed to a subdistributor or End User, for so long as any royalties are payable under this Agreement, Author shall deliver to Developer a report containing al l information reasonably necessary for computing and/or confirming the royalties which have become due under this Agreement since the immediately preceding report. F. Audit Rights. Author shall keep records of all transactions for which royalties are due, in sufficient detail to enable royalties payable under this Agreement to be verified, for a period of three (3) years from the date of payment of such royalties. Author shall Electronic Publishing AgreementPage 7 of 14 permit such records to be inspected by Developer up to twice in each calendar ye ar. All such examinations shall be made at Developer's expense, unless such an examination discloses an underpayment in excess of % of the amount actually due, in whi ch event Author shall pay the full expense of such examination. G. Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Author will pay all taxes and duties assessed in connection with this Agreement by any authority within or outside of the U.S., except for taxes payable on Developer's net income. Developer will be promptly reimbursed by Author for any and all taxes or duties that Developer may be required to pay in connection with this Agreement or its performance under this Agreement. H. Late Payments. Payments made under this Agreement after their due date will incur interest (commencing as of the due date) at a rate equal to % per month or the highest rate permitted by applicable law, whichever is lower. VII. Maintenance and Support. A. By Author. Author will be solely responsible for providing warranty, support, and maintenance services to its subdistributors and End Users. B. By Developer. For so long as Author is not in default of its obligations under Section V.A and continues to actively distribute the Product, Developer will provide Author with all maintenance and upgrades on the Product (including without limitation improvements, bug fixes, updates, and enhancements to the Product) (collectively, Maintenance Services ), from time to time, as and when Developer and Author mutually may determine that such maintenance and upgrades are appropriate. Author shall pay Developer a flat rate of $ per person hour, plus materials (the Maintenance Fees ), for such services and such payments shall be made within days following Author's receipt of Developer's invoice. (Number) VIII. Confidentiality. A. Protection of Confidential Information. Developer and Author will (i) not disclose to any third party or use any of the other party's Confidential Information except as expressly permitted in this Agreement; and (ii) take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maint ain the confidentiality of its own most valuable Confidential Information. B. No Reverse Engineering. Author will not disassemble, decompile, or reverse engineer the Product, either in whole or in part. C. No Copying. Author will not copy or otherwise reproduce the Product, in whole or in part, except for making reasonable numbers of back-up copies or as expressly authorized by this Agreement. Electronic Publishing AgreementPage 8 of 14 D. No Unauthorized Derivative Works. Author will not modify the Product in any manner, except as it may be expressly authorized by Developer in writing. E. Exceptions. Confidential Information will not include information that (i) is or becomes publicly known through publication or otherwise and through no wrongful act of the other party; (ii) is received from a third party without similar restriction and without breach of this Agreement; or (iii) is approved for release or use by written authorization of the other party. F. Injunctive Relief. Developer and Author each acknowledge that the disclosure of the other party's Confidential Information would cause substantial harm to such party that could not be remedied by the payment of damages alone. Accordingly, Developer and Author each will be entitled to preliminary and permanent injunctive relief a nd other equitable relief for any breach of this Section VIII. IX. Warranty. A. Power and Authority of Developer. Developer warrants to Author that it has sufficient right and authority to grant to Author all licenses and rights that Developer grants under this Agreement and that the Product, but specifically excluding any Author Content, does not and will not infringe, or be a misappropriation of, the Intellectual Property Rights of any third parties. B. Power and Authority of Author. Author warrants to Developer that it has sufficient right and authority to enter into this Agreement and to perform its various obligations under this Agreement, and that the Author Content does not and will not infringe, or be misappropriations of, the Intellectual Property Rights of any third parties. C. The Product. Developer warrants that the Product, for a period of ninety (90) days after Author's acceptance pursuant to Section II.E, shall perform substantially in accordance with the Concept Document and any end-user materials prepared and delivered by Developer to Author in connection with the Product. Developer makes no warranty whatsoever as to the accuracy or completeness of any content or other information contained in or utilized by the Product. Author's exclusive remedy and Developer's sole liability under this warranty shall be for Developer to attempt through best efforts to correct any material failure of the Product to perform as warranted, i f such failure is reported to Developer within the warranty period and Author, at Developer's request, provides Developer with sufficient information to reproduce the defect in question. Developer shall have no liability with respect to any failure of the Product t o perform as warranted under this Section IX.C if such failure results from any changes or modifications made to the Product by Author. In the event that Developer cannot, after repeated efforts, remedy such failure, Developer shall refund any development or royalty payments received by Developer from Author under this Agreement and terminate this Agreement, provided that Author has returned all copies of the Product. This warranty is made solely to Author and Author shall be solely responsible for any warranty to, or claims by, End Users or subdistributors of the Product or other third parties. Electronic Publishing AgreementPage 9 of 14 C. Disclaimer of other Warranties. THE ABOVE-MENTIONED WARRANTIES ARE IN LIEU OF, AND DEVELOPER DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. X. Limitation of Liability. A. Limitations and Remedies . Developer's entire liability and Author's exclusive remedy as to defects, performance or nonperformance of the Product shall be the warranties and remedies as set forth in Section IX.C, regardless of the theory of claim or form of action. B. Total Liability. SUBJECT TO SECTION XI.B BELOW, IN NO EVENT SHALL DEVELOPER'S AGGREGATE LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE PAYMENTS ACTUALLY RECEIVED BY DEVELOPER UNDER THIS AGREEMENT. DEVELOPER SHALL HAVE NO LIABILITY WHATSOEVER TO ANY END USER OR SUBDISTRIBUTOR OF THE PRODUCT AND AUTHOR SHALL EXPRESSLY DISCLAIM ALL LIABILITY OF DEVELOPER IN ANY AGREEMENTS WITH SUCH THIRD PARTIES. C. Exclusion of Damages. IN NO EVENT WILL DEVELOPER BE LIABLE TO AUTHOR FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. D. Failure of Essential Purpose. The parties have agreed that the limitations specified in this Section X will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. XI. Indemnification. A. Distribution Indemnity by Author. Subject to Section X.B, Author will indemnify Developer from and against, and will defend or settle at Author's own expense, any action or other proceeding brought against Developer by a third party arising out of or relating to : (i) any acts or omissions of Author or any of its subdistributors in connection with the transfer, licensing, or distribution of the Product; or (ii) relating to the Author Content, or to any other products bundled, combined, or otherwise distributed with the Product. Author will pay any costs and damages actually awarded against Developer, and reasonable expenses (including but not limited to reasonable attorney's fees) incurred by Developer in any such action or proceeding attributable to any such claim. Author will have no obligation under this Section XI.A as to any action, proceeding, or claim unless: (x) Author is notified of it promptly; (y) Author has sole control of its defense and settlement; and (z) Developer provides Author with reasonable assistance in its defense and settlement. Electronic Publishing AgreementPage 10 of 14 B. Infringement Indemnity of Developer. 1. Duty to Indemnify and Defend. Subject to Section XI.A, Developer will indemnify Author from and against, and will defend or settle at Developer's own expense, any action or other proceeding brought against Author to the extent that it is based on a claim that the use of the Software as incorporated into or referenced by the Product is an infringement or misappropriation of any Intellectual Property Right of any third party. Developer will pay any costs and damages actually awarded against Author and reasonable expenses (including but not limited to reasonable attorney's fees) incurred by Author in any such action or proceeding attributable to any such claim. Developer will have no obligation under this Section XI.A.1 as to any action, proceeding, or claim unless: a. Developer is notified of it promptly; b. Developer has sole control of its defense and settlement; and c. Author provides Developer with reasonable assistance in its defense and settlement. 2. Injunctions. If Author's use of the Software as incorporated into or referenced by the Product under the terms of this Agreement is, or in Developer's opinion is likely to be, enjoined due to the type of infringement or misappropriation specified in Section XI.B.1 above, then Developer may, at its sole option and expense, either: a.Procure for Author the right to continue using the Software under the terms of this Agreement; or b. Replace or modify the Software to the extent incorporated into or referenced by the Product so that it is non-infringing and substantially equivalent in function to the Software incorporated into or referenced by the Product; or c. If options a and b above cannot be accomplished despite the reasonable efforts of Developer, then Developer may both (i) terminate Author's rights and Developer's obligations under this Agreement with respect to the Software, and (ii) refund to Author all amounts actually paid by Author to Developer in connection with the Product during the months preceding such event. (Number) 3. Exclusions. Developer will have no obligations under this Section XI.B with respect to infringement or misappropriation arising from (i) modifications to the Software that were not made or authorized by Developer; (ii) the use of the Software in combination with products not provided by Developer; and (iii) Electronic Publishing AgreementPage 11 of 14 compliance with designs, guidelines, plans, or specifications of Author. Author shall indemnify and hold harmless Developer from and against all liabilities, obligations, costs, expenses, and damages, including court costs and reasonable attorney's fees, arising out of any of the circumstances stated in this Subsection 3. 4. Sole Remedy. THIS SECTION XI CONTAINS THE PARTIES' SOLE AND EXCLUSIVE OBLIGATIONS, AND SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS. XII. Termination. A. Termination. Either party may terminate this Agreement (including the licenses granted under this Agreement) in the event the other party commits any material bre ach or default and fails to provide an acceptable remedy of such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party. B. Author's Obligations on Termination. On termination of this Agreement, for any reason, Author shall destroy all written materials provided under this Agreement and all copies of the Product, or portions of it, in its possession or control. Notwithstanding the above, Author may retain one (1) copy of the Product for use solely to support any existing End Users' use of the Product; provided, however, that in the event of any additional breach by Author of any of its ongoing obligations under this Agreement, Developer may immediately terminate Author's right to use the Product for the above support purposes and upon such termination, Author shall immediately return to Developer all copies of the Product. Termination or expiration shall not affect the right s of any End Users of the Product to continue to use such programs or any subdistributors to distribute any inventory copies of the Product; however, Author shall not continue to market the Product or furnish further copies of the Product to any person after termination. C. Nonexclusive Remedy. Except as specifically set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. D. Survival. After termination or expiration of this Agreement, all provisions regarding payments due at the time of or upon termination, or payments which may become due following termination (and any related reporting requirements), ownership, confidentiality, warranty, indemnification, liability and limits, rights and obliga tions upon and following termination, and assignment shall survive. XIII. Source Code Escrow A.Developer agrees to deliver one (1) copy of the Product and one (1) copy of the Software, each in source code form, and related documentation, to a mutually approved escrow agent (the Escrow Agent), within sixty (60) days after execution of this Agreement, and to enter into an escrow agreement with such Escrow Agent (the Escrow Electronic Publishing AgreementPage 12 of 14 Agreement) by that time. Author shall be responsible for all fees charged by the Escrow Agent. B. The Escrow Agreement will contain customary terms and conditions including the following: Subject to the release procedures set forth in Section XIII.C below, Author shall have access to escrowed materials upon the occurrence of any one of the following events, provided that at the time of any such occurrence, Developer's maintenance and support obligations pursuant to Section VII.B of this Agreement are in force: 1. Developer has been liquidated or dissolved or ceased to operate its business in the ordinary course, in each case other than in connection with the merger of Developer with or into another entity; or 2. Developer has failed, and after written notice and a reasonable period to cure, continues to fail, to provide the Maintenance Services set forth in Section VII.B of this Agreement. C. The Escrow Agent shall be instructed to release the escrowed materials only as described in this Section XIII.C. If Author believes an event justifying release of the escrowed materials (a Release Event) has occurred, Author shall so notify Developer and the Escrow Agent, in writing. If, within ten (10) business days of receipt of such notice by Developer, Developer fails to dispute, in a writing delivered to the Escrow Agent, tha t a Release Event has occurred, the Escrow Agent shall release the escrowed mate rials to Author. If Developer does so dispute that a Release Event has occurred, the matter shall be submitted to Arbitration as set forth in Section XIV below. D. Author's sole right and/or interest in the escrowed materials shall be to use such materials, following a release of such materials, solely for the maintenance and support of the Products, and all other terms and conditions set forth in this Agreement, including without limitation Author's obligations with respect to Developer's Confidential Information (which shall include the escrowed materials) shall remain in full force and effect and shall apply to the released escrowed materials. Upon termination of this Agreement, for any reason, Author's right to use the escrowed materials shall also terminate, and Author shall be required to return such materials in accordance with the provisions set forth in Section XII. XIV. Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall sel ect one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Associat ion then in force and effect. Electronic Publishing AgreementPage 13 of 14 XV. Miscellaneous. A. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shal l be deemed to be in full force and effect as if they had been executed by both parti es subsequent to the expungement of the invalid provision. B. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. C. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of . (Name of State) D. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently give n when sent by certified or registered mail if sent to the respective address of each pa rty as set forth at the beginning of this Agreement. E. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasona ble sum for the successful party's attorney fees. F. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporate d in this Agreement. G. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. H. Assignment of Rights. The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. I. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. J. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. Electronic Publishing AgreementPage 14 of 14 K. Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a Force Majeure ), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export lice nse applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than days. (Number) L. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. WITNESS our signatures as of the day and date first above stated. (Name of Developer) By: By: (Printed Name of Author) (Printed Name & Office in Corporation) (Signature of Author) (Signature of Officer) Attach Schedules