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Sample Translation Rights Agreement

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AGREEMENT made by and between O'Reilly Media, Inc., 1005 Gravenstein Highway North, Sebastopol, California, USA (hereinafter "O'Reilly"), and [Signing Publisher] of [Country], (hereafter "[Signing Publisher]"), on this date __________, 2001 (hereafter "Effective Date").

WHEREAS O'Reilly is the sole and exclusive owner of the rights which are the subject of this agreement; and

WHEREAS [Signing Publisher] desires to obtain the rights to translate and publish [Native Language] edition, hereinafter "Translation" of the publication entitled, [Book] hereinafter "the Work."

NOW THEREFORE it is mutually agreed as follows:

1. GRANT OF RIGHTS

O'Reilly hereby grants to [Signing Publisher] the exclusive right to translate the Number Edition only of the Work into the Native [Language] and to publish and sell copies of such translation in volume form only throughout the following:

The World

This Agreement does not grant any rights with respect to subsequent editions of the Work.

2. ROYALTY RATES ON SALES AND REMAINDERS

With respect to all copies of the Translation sold, [Signing Publisher] shall pay to O'Reilly in United States currency, royalties as follows, based on the local list price received by [Signing Publisher] for sales of the Translation:

[Percentage] %

Signing Publisher shall sell no copies of the Work as remainders within a period of three (3) years after the first publication. If after this three-year period [Signing Publisher] wishes to dispose of any surplus stock as reminders at a reduced price, [Signing Publisher] shall first notify O'Reilly of its intention. Royalty to be paid to O'Reilly on all copies sold as reminders shall be ten percent (10%) of the sum received by [Signing Publisher]; however, no royalty shall be payable to O'Reilly on remainders sold at or below [Signing Publisher] cost of paper, printing and binding.

3. MINIMUM GUARANTEE

As a minimum guarantee of royalty, [Signing Publisher] shall pay to O'Reilly upon signing this Agreement the nonrefundable sum of [dollars] US currency. Said sum shall be considered as an advance against royalties that may become due hereunder, except however, that in the event accrued royalties total less than this amount, O'Reilly shall retain the full amount paid pursuant to this Paragraph.

[Signing Publisher] shall pay the cost of all taxes and preparatory fees necessary to pay the minimum guarantee.

4. REPORTS AND ROYALTY PAYMENTS

With respect to reporting on copies published and sold and paying of royalties, [Signing Publisher] shall:

a. Immediately upon publication of the translation, submit to O'Reilly by fax or airmail a statement giving (1) the date of publication, (2) the total number of copies printed, and (3) the retail price, said statement to be accompanied by 4 copies of the initial printing.

b. Within sixty (60) days after January 1 and July 1, submit to O'Reilly a statement concerning such preceding six (6) months giving (1) the date and current retail price of any reprint of the Work, (2) the total number of copies printed by [Signing Publisher], if any, (3) the total number of copies sold by or on behalf of [Signing Publisher] and (4) the number of copies remaining on hand at the end of the reporting period, said statement to be accompanied by the corresponding royalty payment required under Paragraph 2 of the Agreement.

c. [Signing Publisher] shall permit its books of account or records of sale to be inspected at any reasonable time during normal business hours by a representative of O'Reilly for the purpose of verifying the amounts due hereunder.

d. In the event of termination of this Agreement, [Signing Publisher] shall within thirty (30) days submit (1) a final report which provides the data required in 4.b, and (2) detailed documentation of any royalties owed.

e. The exchange rate to be used in computing the sums owed by [Signing Publisher] to O'Reilly in United States currency shall be the exchange rate in effect on the appropriate day of the Reporting Period (December 31 or June 30) as reported in the Wall Street Journal.

f. Any local taxes levied or passed on to O'Reilly for the royalty payments shall be borne by [Signing Publisher]

5. FAITHFUL TRANSLATION

The translation shall be made faithfully and accurately, shall be of good literary quality, and shall consist of the whole of the textual, pictorial, diagrammatic material, and software constituting the Work, without alteration, abridgment, or supplement, except with the express written permission of O'Reilly. O'Reilly reserves the right to approve the final manuscript before its publication. [Signing Publisher] will submit the final manuscript to O'Reilly for review. Any comments will be forwarded to [Signing Publisher] and required modifications made to the manuscript before the Translation is published. O'Reilly shall forward modifications of the manuscript within a reasonable time period.

[Signing Publisher] agrees to use the original cover art and design of the Work. [Signing Publisher] must obtain written approval from O'Reilly of the final cover of the Translation before its publication.

6. COST OF TRANSLATION AND PERMISSIONS

All costs and expenses of carrying out [Signing Publisher]'s rights and performing [Signing Publisher]'s obligations hereunder shall be borne by [Signing Publisher], including the costs of compensating all translators. [Signing Publisher] agrees to obtain from all translators' proper written grants of all rights to their work. [Signing Publisher] shall also be responsible for obtaining and paying for any permissions for the use of photographs, illustrations, or quotations from works copyrighted by other than O'Reilly, which are required in connection with the Translation.

7. SALES PROMOTION

[Signing Publisher] shall exert every reasonable effort to promote the sale of the Translation licensed hereunder.

8. GOING OUT OF PRINT

[Signing Publisher] shall provide O'Reilly with written notice of its intention to permit the Translation to go out of print. For purposes of this Agreement, the Translation may be considered out of print if [Signing Publisher] or another agency on behalf of [Signing Publisher] sells less than two hundred fifty (250) copies in two successive six-month periods.

9. DURATION AND TERMINATION OF THIS AGREEMENT

a. This Agreement shall be rendered invalid if not signed by [Signing Publisher] within sixty (60) days of the Effective Date.

b. This Agreement shall terminate if the sum due upon signing under Paragraph 3 above has not been received by O'Reilly within sixty (60) days after date of signing by [Signing Publisher].

c. This Agreement shall terminate six (6) months after the release of any subsequent editions of the Work, unless otherwise agreed in writing.

d. [Signing Publisher] agrees to publish the Translation within twelve (12) months of the Effective Date. If [Signing Publisher] fails to publish the Translation within the specified time, unless O'Reilly grants a written extension, this Agreement shall terminate.

e. If [Signing Publisher] allows the Translation to go out of print for more than six (6) months, all rights to the Translation under this Agreement will revert to O'Reilly.

f. At the election of O'Reilly if [Signing Publisher] shall fail, within thirty (30) days after notice is given by O'Reilly that the latter is in default with respect to any of the terms of this Agreement, to remedy such default to the satisfaction of O'Reilly, then O'Reilly may terminate this Agreement.

g. O'Reilly shall have the right to terminate this Agreement if ownership or control of [Signing Publisher] is changed.

Upon termination of this Agreement:

h. O'Reilly shall not be liable for any termination damages or indemnities, and [Signing Publisher] hereby agrees not to restrain O'Reilly from appointing an alternate licensee or from acting directly in respect of existing and future translations.

i. If there is remaining stock, [Signing Publisher] agrees to sell of such stock in 180 days, unless otherwise agreed in writing.

j. All the rights hereunder shall revert to O'Reilly, without prejudice to any monies due O'Reilly from [Signing Publisher].

10. COPYRIGHT OWNERSHIP, PROTECTION, AND NOTICES

[Signing Publisher] shall, during the creation of the Translation and upon its publication, promptly secure whatever copyright protection may be available in the aforesaid territory with respect to the Translation. All copyrights in the Work shall be and shall remain owned by O'Reilly, subject only to the rights granted to [Signing Publisher] herein. [Signing Publisher] shall display in the English language, in all copies of the Translation in the place which is usual in the publishing practice of its country, the original title of the Work and the name(s) and affiliation(s) as shown on the title page the Translation in this form:

© name of [Signing Publisher] [year of first publication of the Translation]. Authorized translation of the English edition © [year of first publication of the English edition] O'Reilly Media, Inc. This translation is published and sold by permission of O'Reilly Media, Inc., the owner of all rights to publish and sell the same.

[Signing Publisher] shall also include any other notice required by the applicable copyright laws for the full protection of the Work or the Translation. The provisions of this Paragraph are of the essence of this Agreement, and the permission to publish and sell the Translation which is granted hereby is conditioned upon the printing of the aforesaid copyright notices on each copy thereof. Ownership of the copyright in the Translation shall not entitle [Signing Publisher] to make or permit any use of the Translation other than as permitted by Paragraph 1 hereof, and [Signing Publisher]'s only rights in and to the Work or the Translation are those granted by Paragraph 1.

Licensee agrees that the Nutshell Handbook trademark and cover designs of O'Reilly's books are O'Reilly's unique trademark and trade dress and such trademark and trade dress will only be used for products authorized by O'Reilly.

11. INFRINGEMENT OF COPYRIGHTS

In the event the copyright in [Signing Publisher]'s translation shall be infringed within the territory of the grant, [Signing Publisher] shall take such steps as may be necessary to restrain such infringement, and in the event that [Signing Publisher] shall collect damages therefore, then [Signing Publisher] shall thereupon pay to O'Reilly one-half of all sums so collected after deduction of legal expenses and court fees paid by [Signing Publisher] in enjoining said infringement and effecting the collection of said sums. O'Reilly shall have the right and option to engage counsel of its own choosing, to join with [Signing Publisher] in any action to restrain infringement, or to bring an action separately in the name of O'Reilly or Licensee.

12. ASSIGNMENT OF LICENSE

[Signing Publisher] shall not assign this license nor shall [Signing Publisher] sublicense its rights without the prior written consent of O'Reilly.

13. RESERVATION OF RIGHTS

All rights not specifically granted to [Signing Publisher] in this Agreement are reserved by O'Reilly.

14. WARRANTIES AND COVENANTS

[Signing Publisher] represents, warrants and covenants that it has full power to enter into this Agreement and to perform the services required of it hereunder; that any advertising or promotional statements which it publishes concerning the Translation will not, in whole or in part, plagiarize any work, infringe any copyright or violate any right of privacy or other personal or property right, or contain false, misleading, fraudulent, libelous, or obscene matter or other matter which is unlawful or which will give rise to a criminal or civil cause of action; and that it shall at all times in the conduct of the promotion, distribution and sale of the Translation strictly comply with all applicable laws and regulations of the Territory.

[Signing Publisher] shall indemnify and hold O'Reilly, its officers, directors, employees or agents harmless from any loss, expense (including reasonable attorney's fees and disbursements) or damages incurred by [Signing Publisher] or any of its officers, directors, employees, or agents as a result of a breach of any of the foregoing warranties and covenants, or any such loss, expense or damage arising from any claim, demand, recovery, suit motion or civil or criminal proceeding based upon or alleging in any way, in whole or in part, facts which are contrary to, or inconsistent with, any of the foregoing warranties and covenants. These warranties and indemnities shall survive the termination of this Agreement.

15. US EXPORT CONTROLS

O'Reilly books and other technical data are of US origin and, as such, are subject to export licensing and other restrictions under US law. O'Reilly will provide information regarding US Government export and re-export requirements on request. [Signing Publisher] will comply with all applicable restrictions on exports and re-exports, including obtaining any required US or local Government license, authorization or approval. Whenever [Signing Publisher] re-sells or otherwise disposes of any O'Reilly products, or other technical data, it will inform each transferee of all applicable requirements and restrictions of further exports or re-exports. [Signing Publisher] will furnish O'Reilly such documents and information with respect to export control in such form as O'Reilly may from time to time require.

16. LEGAL JURISDICTION

This Agreement shall be construed and interpreted under and in accordance with the laws of the State of California, USA. The parties irrevocable (a) agree that any suit, action or other legal proceeding arising out of this Agreement may be brought in any federal court located in the United States of America, and (b) consent to the Jurisdiction of any such court in any suit, action or proceeding.

17. GIVING NOTICE

All notices, requests and demands (e.g., address changes, termination requests, various copies of receipts, etc.) given to or made upon the parties shall be in writing and shall be properly addressed, postage prepaid, sent via registered or certified mail or personally delivered to such party. Notices may be sent by facsimile transmission provided that, in addition, a copy of such facsimile shall be sent by mail to each addressee. The effective date of a notice for purposes of this Agreement shall be the date on which such notice was actually received by the party to whom it is addressed. Each party shall promptly notify the other party of any address change.

To O'Reilly at:

O'Reilly Media, Inc.
1005 Gravenstein Highway North
Sebastopol, CA 95472-9902
USA

Attention: Cynthia Wetterlund

Phone: (707) 829-0515
Fax: (707) 829-0104

And in the case of [Signing Publisher] to:

[Address]

Attention:
Phone:
Fax:

18. ENTIRETY OF AGREEMENT

This Agreement, together with any exhibits hereto, constitutes the sole and entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior negotiations, dealings, letters of intent, agreements and understandings of the parties in connection therewith. No amendment, modification or alteration of this Agreement shall be valid unless it shall be in writing and signed by the parties hereto.

19. HEADINGS

THE HEADINGS of this Agreement are included for convenience only and are not part of this Agreement.

IN WITNESS WHEREOF duplicate copies of this Agreement have been signed on behalf of O'Reilly by its duly authorized officer, and on behalf of [Signing Publisher] by its duly authorized officer, on the dates specified below.

O'Reilly Media, Inc. [Signing Publisher]
By: (signature) By: (signature)
Name: Cynthia Wetterlund
Title: International Rights and
          Licensing Manager
Date:
Name:
Title:
Date:


© 2004 O'Reilly Media, Inc.