Model Trade Book Contract

7.

Delivery.

    1. Delivery of Manuscript.

      Author shall deliver to Publisher on or before ______________, 20__ (the "Delivery Date") the complete Work (in [Word] or other standard electronic format editorially acceptable to Publisher), which shall meet the description set forth in Section 1. The Delivery Date may be amended by mutual written agreement (including email) between the Author and Publisher.

    Commentary

    Be sure to negotiate a realistic due date, as failure to deliver on time can allow the publisher to terminate the contract and gives it the right to recoup any portion of the advance already paid. If completing your manuscript depends on something happening in the future, the availability of information, or similar events that are not under your control, it is prudent to add a clause permitting you to extend the delivery date by written notice if circumstances prevent you from completing the work within the specified time period. If the publisher requires more than one copy of the work and/or a specified format for the digital file, it is also wise to spell that out so there is no confusion later.

    1. Failure to Meet Delivery Date.

      If Author fails to deliver the complete Work by the Delivery Date, unless otherwise agreed by Publisher or due to circumstances beyond Author's control, then Publisher shall send Author a written notice of Author's default and shall provide Author with a 30-day grace period to deliver the Work. If, after receiving the written notice, Author fails to deliver within the 30-day period, Publisher may terminate the Agreement by a second written notice. If the Agreement is terminated under this provision, then Publisher may demand, in writing, that Author return all sums theretofore paid to Author by Publisher in connection with the Work. Author's failure to deliver the Work on a timely basis will not be deemed to be a material breach of this Agreement if the failure is attributable to wars, government restrictions, fires, natural disasters, acts of God, or any other cause beyond Author's reasonable control only for the time covered by the conditions, and in no event for more than 6 months passed the original due date.

    Commentary

    It is common in the industry for an author to have a grace period of 30–40 days for delivery of the manuscript. The Authors Guild recommends longer grace periods since, in reality, so many books are late despite the authors' best intentions. But most publishers do not like long grace periods as it impacts workflow and schedules, and a book that is more than a month or two late can push the publication date into a different cycle.

     

    If you think you will be late in delivering a book, it is very important to give your publisher as much advance notice as possible, and be ready to show proof of progress such as manuscript pages or research. Most publishers schedule publication, including marketing and sales, far in advance and they will need to know well ahead of time if they must reschedule the publication date. You should discuss any delay you foresee with your editor as soon as you become aware of it. If the publisher agrees to extend the delivery date (or even requests it), it is best to have the extension in writing and signed by both parties, especially if the delay will be more than a month or so. Even if you trust your editor's verbal word, it is best to have a written acknowledgement for your protection because otherwise you could be held in breach.

     

    Some publishers are becoming stricter about deadlines to manage their internal flow and publication schedule, but as long as they know you are working on the book and you give them plenty of notice, they will usually try to accommodate you. Nevertheless, you should always bear in mind that the publisher does have a right to terminate the agreement if you do not deliver the book on time.

    1. Acceptance/Rejection of Manuscript.

      Publisher will inform Author in writing, within 60 days following Publisher's receipt of the complete Work delivered pursuant to Subsection 7(a) above, whether the Work is editorially acceptable.

    Commentary

    The publisher should provide a clear timetable for review and acceptance or rejection of the manuscript so that you don't have to wait in limbo.

     

    Most publishers' contracts contain a subjective standard for acceptance or rejection (i.e., the publisher determines whether the work is acceptable "in its sole discretion"). As an advocacy matter, the Authors Guild objects in principle to completely subjective acceptance standards because they give the publisher an easy way out of a contract without substantiating its decision. Publishers often will argue that they need the ability to terminate an author who is not producing or hands in substandard work, but the Authors Guild believes they can and should do so under an objective standard. Publishers can be sticklers on these clauses, however.

     

    The Authors Guild recommends trying to negotiate language such as "editorially unacceptable in accordance with Publisher's standards for similar works." Established authors may also refer to the quality of a prior, similar book they have written, especially if it was for the same publisher (e.g., "the manuscript will be similar in quality to Author's most recent [novel/biography, etc.]"). Another fix is for the publisher and author to develop a sufficiently detailed description of the work if the author is certain enough about what the final manuscript will look like. That description could be used as an objective measure against which the publisher would judge the work.

    1. Revision Process.

      • If the Publisher reasonably determines that the Work delivered is editorially unacceptable, needs revision, or if it does not meet the Description in Section 1, Publisher will provide written editorial comments to Author with respect to the revisions required, and Author shall have 60 days, unless otherwise agreed by Publisher and Author, after receipt of such comments to make the revisions. If Author fails to deliver the revised Work within the said 60 days, or should Publisher reasonably find that the revised Work is still editorially unacceptable or does not meet the Description, Publisher may reject the Work by written notice to Author within [30] days of delivery of the revision.

      • If the Work is rejected by Publisher under this Section 7, Publisher may terminate this Agreement on written notice to Author, and Author shall use reasonable efforts to sell the Work or a revision thereof elsewhere and shall repay any and all sums previously paid to Author under this Agreement from the "first proceeds" that Author receives from any sales of or licenses to Publish the Work or a revision thereof.

      • For avoidance of doubt, Publisher shall not be entitled to reject the Work or terminate this Agreement based upon matters unrelated to the editorial quality of the manuscript.

    Commentary

    If a manuscript is not deemed acceptable as is, the author should get at least one chance to revise it, and the editor should provide written comments so the author knows how to revise it to make it acceptable. New York State contract law requires this kind of good faith feedback in most cases, but it is best to have it spelled out in the contract. It is important to have reasonable deadlines on both the publisher's side (to provide comments) and the author's (to furnish a revised copy) to avoid losing momentum on the book.

     

    If the manuscript is still unacceptable after the author's edits—to the point that the editor does not feel that the book can be fixed—it is fair for the publisher to cut its losses and terminate the agreement. In such cases, the publisher may ask for any advance already paid to be paid back out of proceeds from a subsequent sale (referred to as "first proceeds"). Some publishers have a provision that enables them to demand all or half of the paid advance back from the author even if the author regardless of whether the author resells the book, which is a harsh penalty since the author has spent time writing the book and usually has already spent the advance. We recommend negotiating a "first proceeds" basis of repayment of any advance payments, which would oblige you pay back the publisher only out of the "first proceeds" you earn if you place this book with another publisher.  

    1. Proofreading and Author's Corrections.

      Following acceptance of the Work, Publisher shall proofread and copyedit the manuscript and, subject to Author's prior approval, may make the manuscript conform to Publisher's standard style of punctuation, spelling, capitalization, and usage. Author shall have the right to review and approve all such changes. Author shall reasonably cooperate in making any required corrections, and reading, correcting, and returning all page and/or galley proofs within 15 business days of receiving them. The cost of alterations made by Author to the proofs (other than correction of printer's errors) in excess of 15% of the original cost of composition shall be deducted from Author's royalties, and Author shall be entitled to see the bill for such charges.

    Commentary

    Copyediting changes can range from punctuation, grammar, spelling, and capitalization to correcting factual errors or manuscript inconsistencies. Because changes might be substantial, copyediting should be subject to your review. You should have the right to approve any changes to the manuscript. The publisher might insist that approval not be "unreasonably withheld," but you should try to push back on that. You do not want to be in a dispute about whether you are being reasonable about the publisher's edits on the verge of publication of the book. The period of review can vary from a few days to a few weeks. Be sure the contract provides you with sufficient time (ideally, no less than two weeks) to conduct the review.

     

    Many publishers require the author to pay for changes to the proofs that are in excess of 10–15% of the original cost of composition and that are not due to the publisher's or printer's errors. Bear this in mind when you review the proof.

    1. Related Materials.

      Author shall deliver, at Author's expense, all photographs, illustrations, maps, graphs, charts, an appendix, a bibliography, or other supplementary matter that Author and Publisher agree to include in the Work (individually or collectively, "Related Materials") with the Work or at a mutually agreed later date, subject to the  publication schedule. Publisher shall be responsible for the safekeeping of the Related Materials placed in its possession and shall pay to Author the cost of replacing and recopying them in the event of their loss or destruction. [If Author does not deliver the Related Materials prior to the Delivery Date or other mutually agreed date in a reproducible format, Publisher may supply them and deduct the reasonable costs of such from any unpaid portion of the Advance or author royalties; if the total Advance has already been paid, any such sums will be charged to Author's royalty account.]

    Commentary

    Beware of clauses requiring the author to provide "all" additional materials deemed necessary "in the publisher's discretion." Such clauses leave you vulnerable to demands for work you did not consider when you agreed to the advance. It is much safer to specify in the contract as precisely as possible the materials you have agreed to provide or stipulate that any additional material must be mutually agreed upon between the author and publisher to prevent unforeseen unilateral demands from your publisher. If you are not creating the additional materials yourself, try to split the costs of preparing any related materials with the publisher.

     

    For works that involve a large number of related materials, consider listing them in a schedule attached to the agreement and make sure the agreement is clear on how the costs are split between the publisher and author.

    1. Permissions.

      If permission from others is required for publication of any Related Material or any third-party-authored text contained in the Work, or for the exercise of any right conferred by this Agreement (including trademarks and the right to promote the Work), Author shall be responsible for obtaining such permissions throughout the Territory [, at Author's expense,] and shall submit them with the complete Work or Related Materials. [Any reasonable sums that Publisher pays on Author's behalf under this Section 7(g) may be deducted from any unpaid portion of the Advance; if the total Advance has already been paid, any such sums will be charged to Author's royalty account.] Such permissions shall permit the exercise by Publisher and its licensees of all the rights granted by Author to Publisher under this Agreement.

    Commentary

    Most publishers' standard contracts simply make the author responsible for obtaining—and paying for—permissions (also known as "clearances"). As an advocacy matter, The Authors Guild believes that the cost of obtaining permissions should in the very least be split equally between the author and publisher, however, most publishers are unwilling to accomodate these costs. That said, if your contract stipulates that in the event that your publisher is required to obtain permissions for any reason, it will bill you separately for the cost, try to change the language so that instead of paying out of pocket, you will repay the publisher through deductions from your royalties.

    1. Index.

      In the case of a nonfiction work, if Author and Publisher mutually agree that the Work should include an index, Publisher shall have the right to commission the preparation of an index, reasonable to the size and scope of the Work, [at Author's expense, to be charged to Author's royalty account, but in no event shall Author be charged more than $1,500] unless Author provides an acceptable index within a mutually agreeable time period in accordance with Publisher's production requirements.

    Commentary

    Most nonfiction and textbook contracts contain language requiring the author to provide or pay the publisher for the creation of an index. If your contract does not give you the option of providing an index, you should negotiate for one. Many authors prepare indexes on their own with easy-to-use software. If the publisher has the index created, try to cap the costs at $1,000–12,500 and have the amount charged against royalties rather than against the advance.