Publishing Partner Agreement, Exclusive (2022-09-13)


THIS PUBLISHER AGREEMENT (this "Agreement") is made by and between the publisher accepting this Agreement on behalf of itself or its organization ("Licensor") and Roll20, LLC a Nevada limited liability company ("Roll20").

WHEREAS, Licensor owns and/or controls world-wide rights in and to certain books, graphic novels, games, comic books, software, accessories, music, cards, and/or other creative works, and such other like works created from time to time by or on behalf of Licensor, and which are uploaded, submitted, and/or otherwise provided by Licensor to Roll20 through Roll20's digital marketplaces or applications (the "Submitted Works").

WHEREAS, Licensor desires to have Roll20 publish, distribute, and sell through Roll20's digital marketplaces and applications such Submitted Works on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Licensor's Grant of Rights; License. Licensor hereby grants to Roll20 during the Term (as defined below) the transferable, sublicensable right and license throughout the world to produce, reproduce, integrate, encode, and encrypt the Submitted Works and publish, market, display, perform, rent, license, sell, exploit, transmit, and distribute the Submitted Works by and through all means now known or hereinafter developed through Roll20's digital marketplaces and applications in the formats specified by Licensor (the "License"). Subject to the final sentence of Section 9 of this Agreement, the License shall be exclusive to distribute and sell Submitted Works that are in digital book format (including pdf, epub, mobi, and similar file formats) and non‑exclusive for Submitted Works in other formats.

2. Royalties; Payments.

(a) Royalties. Roll20 shall pay to Licensor as royalties on sales receipts (i.e., the amount actually received by Roll20 from a third-party less only the items detailed below) 70% of all sales receipts received from the Submitted Works ("Royalties"). Sales receipts shall not include (i) amounts charged for freight, sales tax, or value added tax (which taxes Roll20 may, where applicable, collect and remit as seller of record) or (ii) sales resulting in payment chargeback, customer refund, or fraud. Sales receipts of print-on-demand format titles shall also be reduced by the current print cost amount for the Submitted Works sold in printed format; such print cost amount shall be listed on Roll20's website and periodically updated by Roll20.

(b) Payments. Roll20 will use commercially reasonable efforts to make Royalties available for payment within 30 days after the date of sale ("Available Royalties"). At Roll20's sole discretion, Roll20 may change the Licensor to verified status which will result in Roll20 using commercially reasonable efforts to make Available Royalties within 15 days after the date of sale. Available Royalties will be paid by Licensor's choice of US dollar check, PayPal, or other payment service that Roll20 may add in the future. Roll20 will use commercially reasonable efforts to mail check payments or PayPal payments on or before the 15th of each month based on Available Royalties as of the end of the prior month. If such payment would not exceed $100 in any month ("Minimum Payment"), then Roll20 shall have the right to maintain and accrue such Royalties until such month where such Available Royalties exceed the Minimum Payment. PayPal payments and payments from services added in the future are subject to an electronic payment fee of one dollar (or such higher amount as periodically updated on Roll20's website) deducted from each payment. Licensor shall be solely responsible for all taxes based upon Licensor's income.

(c) Payments to Others. In the event of Licensor's death, Roll20 agrees to continue the payment of Royalties, to Licensor's estate, in accordance with the terms of this Agreement, until termination as set forth herein. Roll20 agrees to make payments of the Royalties to another person or entity, in the event that Roll20 is directed to do so by Licensor in writing, duly executed by Licensor or Licensor's legally authorized representative.

3. Term and Termination. The term of this Agreement shall commence on the date of first use of the publisher interface and services of Roll20's digital marketplaces or applications, and shall continue until terminated as set forth herein (the "Term"). Either party may terminate this Agreement upon written notice: (i) if the other party materially breaches the Agreement and does not cure such breach within thirty (30) days after receiving notice of such breach; (ii) if the other party files a petition under the bankruptcy laws, makes an assignment of its assets for the benefit of its creditors, or otherwise liquidates its business; or (iii) for convenience upon six (6) months' prior written notice.

4. Reversion of Rights to Licensor. Upon termination of this Agreement, all rights in the Submitted Works granted to Roll20 in this Agreement will revert back to Licensor, provided that (a) any license or contract previously granted to a third-party purchaser under this Agreement will remain in effect and (b) Roll20 shall continue to have the right to provide previous third-party purchasers of Licensor's Submitted Works access to such Submitted Works via the Roll20 digital marketplaces and applications.

5. Rights Surviving Termination. Upon the termination or expiration of this Agreement, any rights reverting to Licensor will remain subject to all licenses and other grants of rights made by Roll20 to third parties under this Agreement. Any rights or obligations of the parties in this Agreement that, by their nature, should survive termination or expiration of the Agreement, will survive any such termination or expiration, including any and all rights of Roll20 under such third-party licenses and grants.

6. Use of Licensor's Name and Likeness. Roll20, and any licensees or assigns of Roll20's rights under this Agreement, have the right to use Licensor's name and approved image, likeness, and biography, as well as product logos, illustrations, cover images, and short excerpts of or related to Submitted Works for advertising, promotion, and other exploitation of the Submitted Works and other rights granted under this Agreement.

7. Permissions and Clearances. Licensor shall obtain, at Licensor's expense, all permissions and other clearances that Roll20 deems necessary for the inclusion of any textual, illustrative, or other material in the Submitted Works selected by Licensor.

8. Roll20's Representations and Warranties. Roll20 represents and warrants to Licensor that it has the right to enter into this Agreement and to perform all obligations in this Agreement.

9. Licensor's Representations and Warranties. Licensor represents and warrants to Roll20 that: (a) Licensor has the full right, power, and license to enter into this Agreement and convey the rights granted to Roll20; (b) the Submitted Works do not and shall not infringe upon or violate any copyright, trademark, trade secret, or other intellectual property or privacy right of any other person or entity; and (c) the Submitted Works contain no material that is obscene, libelous, in violation of any right of privacy or publicity, or harmful so as to subject Roll20 to liability to any third party, or otherwise contrary to law. Licensor acknowledges and agrees that Roll20 shall be under no obligation to register the copyright for any Submitted Work in any country or countries and shall not be liable to Licensor for any acts or omissions by Roll20 in connection therewith. Licensor further acknowledges and agrees that, upon written notice to Licensor, Roll20 may elect, at any time and at its sole discretion, to not publish, distribute, or sell (or to stop publishing, distributing, or selling) any Submitted Work through Roll20's digital marketplaces and applications and shall not be liable to Licensor for any acts or omissions by Roll20 in connection therewith; provided that, if the affected Submitted Work is in digital book format (including pdf, epub, mobi, and similar file formats), then upon Roll20's provision of notice pursuant to this sentence, the License for such Submitted Work shall be automatically deemed non‑exclusive.

10. Licensor's Indemnities. Licensor shall indemnify, defend, and hold harmless Roll20, its affiliates and parents, and its and their respective employees, directors, managers, officers, representatives, agents, successors, and assigns for, from, and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees and the cost of pursuing any insurance providers arising out of or in connection with any third-party claim, suit, action, or proceeding (each, an "Action") relating to any actual or alleged breach by Licensor of its representations, warranties, covenants, or other obligations hereunder.

11. Indemnification Procedure. Roll20 shall promptly notify Licensor in writing of any Action and cooperate with Licensor at Licensor's sole cost and expense. Licensor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at Licensor's sole cost and expense. Licensor shall not settle any Action in a manner that adversely affects Roll20's rights without Roll20's prior written consent. Roll20's failure to perform any obligations under this Section will not relieve Licensor of its obligations under this Section except to the extent that Licensor can demonstrate that it has been materially prejudiced as a result of such failure. Roll20 may participate in and observe the proceedings at its own cost and expense.

12. Assignment. This Agreement is binding on and inures to the benefit of the parties hereto, and their heirs, successors, and assigns. Licensor shall not assign any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily or involuntarily, by operation of law, or otherwise, without Roll20's prior written consent. Any purported assignment in violation of the foregoing shall be null and void. Roll20 may assign this Agreement or its rights hereunder, or delegate its obligations hereunder, at its sole discretion.

13. Entire Agreement. This Agreement is the sole and entire agreement of the parties with respect to the subject matter herein, and amends, restates, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter, including, without limitation, any prior license agreement, publisher agreement, or other form of agreement entered into by or on behalf of Roll20 and Licensor.

14. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

15. Amendment and Modification. Roll20 may revise this Agreement at any time for any reason, and Roll20 may provide Licensor notice of these changes by any reasonable means, including by providing notice through Roll20's digital marketplaces and applications. By continuing to use Roll20's digital marketplace for publishing services, Licensor confirms acceptance of any revised Agreement(s) and all the terms incorporated herein by reference.

16. Waiver. No waiver by any party of any of the provisions hereof (a) will be effective unless explicitly set forth in writing and signed by the party so waiving or (b) operate or be construed as a waiver about any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or will be construed as a waiver thereof; nor does any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

18. Notices. All notices, waivers, and other communications hereunder shall be in writing and addressed to the address specified by each party from time to time.

19. Governing Law; Submission to Jurisdiction. This Agreement and all related documents including all schedules attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws provisions thereof. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal courts of the United States of America or the courts of the State of Nevada, in each case located in Clark County, Nevada, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein is effective service of process for any suit, action, or other proceeding brought in any such court.

20. Licensor agrees to receive Roll20's publisher newsletter email. Licensor shall have the option to opt-out of such email under Roll20 website account settings.

By checking "I agree" below and setting-up your publisher account, you acknowledge that you have read, understand and agree to be bound by the terms above.

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