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The "Winner's" Publishing Contract

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Anonymous

Ok, my legal eagle out here banged together the preliminary contract, which might yet be modified somewhat due to input from those that might wish to participate... and I will post it here in hopes of either general approval by potential contestants, or to garner those aforementioned suggestions.

This IS preliminary, but is our starting point.
******************************************
License

This Agreement entered into by and between INNER CITY GAMES DESIGNS and __________________ (AUTHOR). The parties agree as follows:
1. Grant of License. AUTHOR grants INNER CITY GAMES DESIGNS the right to use, during the term and on the conditions set forth in this Agreement, a work of authorship which is a game entitled ___________________________, heretofore referred to as “Work.”
2. Term. This agreement shall last for eighteen (18) months.
3. Right of First Refusal. AUTHOR grants to INNER CITY GAMES DESIGNS the right of first refusal for a relicense of the Work. If AUTHOR intends to relicense the Work, AUTHOR will notify INNER CITY GAMES DESIGNS not less than 30 days prior to the termination of this Agreement that he intends to relicense the Work. Both parties agree that they will negotiate a relicense contract in good faith.
4. Scope. INNER CITY GAMES DESIGNS shall only use the Work for purposes of production of a microgame and related marketing.
5. Royalty. The royalty to be paid to AUTHOR by INNER CITY GAMES DESIGNS for use of the Work shall be as follows:
5.1 AUTHOR is entitled to one time payment of $ 50.00 by check to be mailed by regular mail to AUTHOR’s address listed below when the Work is in its final production version.
5.2 AUTHOR is also entitled to a flat royalty per unit sold of the Work, except for any unit sold or given to AUTHOR as provided in Paragraph 8 as follows: If the Work is determined by INNER CITY GAMES DESIGNS to have a Manufacturer’s Suggested Retail Price of $ 5.95, AUTHOR is entitled to $ 0.10 per unit sold. If the Work is determined to have a Manufacturer’s Suggested Retail price of $ 6.95, AUTHOR is entitled to $ 0.15 per unit sold. If the Work is determined to have a Manufacturer’s Suggested Retail Price of $7.96, AUTHOR is entitled to $0.20 per unit sold.
5.3 AUTHOR is not entitled to any royalty on any unit of the Work that is not sold. Unsold units may be used by INNER CITY GAMES DESIGNS in its sole discretion for advertising, marketing, prizes or similar uses.
6. Reports and payment. INNER CITY GAMES DESIGNS shall provide semi-annual reports to AUTHOR containing the number of units of the Work produced, the number of units of the Work sold, and the number of units of the Work remaining in stock. INNER CITY GAMES DESIGNS will include payment for the royalty calculated in accordance with Paragraph 5 herein with the semi-annual report.
7. Appearance of final product. INNER CITY GAMES DESIGNS will consult with AUTHOR on the appearance, layout, art, and production qualities of the final version of the Work intended for production and sale; however, INNER CITY GAMES DESIGNS shall have the right to determine, in its sole discretion, the final appearance, layout, art, and production qualities of the final version of the Work intended for production and sale.
8. Additional rights of AUTHOR. AUTHOR is entitled to six copies of the final version of the Work for his own use. AUTHOR is also entitled to purchase up to 50 copies of the final version of the Work at the production cost incurred by INNER CITY GAMES DESIGNS. AUTHOR hereby agrees to pay $5.00 shipping in addition to the production cost for each shipment of the final version of the Work purchased by AUTHOR. Copyright for the Work is retained by AUTHOR.
9. INNER CITY GAMES DESIGNS’s duties.
9.1 INNER CITY GAMES DESIGNS shall use the Work only for the purposes authorized in this Agreement.
9.2 INNER CITY GAMES DESIGNS’s use of the Work shall conform to the industry standards.
9.3 INNER CITY GAMES DESIGNS shall accredit authorship of the Work to AUTHOR on the front cover of the Work.
9.4 INNER CITY GAMES DESIGNS guarantees that no less than 100 units of the Work shall be produced and offered for sale through its normal distribution network.
10. Relationship of the Parties. Nothing in the Agreement shall be deemed to constitute a joint venture, INNER CITY GAMES DESIGNS employment or other legal relationship other than that of licensee and licensor.
11. Transfer and Assignment. This Agreement constitutes a personal contract and INNER CITY GAMES DESIGNS shall not transfer or assign this Agreement or any part of this Agreement without AUTHOR’s prior, express, written consent.
12. Trade Secrets/Confidentiality. Both INNER CITY GAMES DESIGNS and AUTHOR may share privileged and confidential information with the other party during the term of this Agreement. Any information that is intended to remain confidential shall be clearly marked or indicated. The recipient shall only distribute such information to those with a “need to know” and shall ensure that all employees or agents maintain the confidentiality of the information received. Both parties agree that monetary damages alone may not be sufficient to compensate a party injured by dissemination of its confidential information and that injunctive or other equitable relief shall be available.
13. Failure of AUTHOR to Maintain Exclusivity. Sale or relicense of Work by AUTHOR for use in any gaming or game-related product during the term of this Agreement, is a serious breach of the Agreement and will result in a forfeiture of the original amount paid. Recognizing that adequate damages to INNER CITY GAMES DESIGNS cannot be calculated for this breach, AUTHOR agrees to pay INNER CITY GAMES DESIGNS liquidated damages in the amount of $500.
14. Indemnification.
14.1 INNER CITY GAMES DESIGNS Indemnification. INNER CITY GAMES DESIGNS shall indemnify, defend and hold harmless AUTHOR from any and all damages, claims, suits or costs relating to INNER CITY GAMES DESIGNS’s product, services, or activities and use or misuse of the Work.
14.2 AUTHOR’s Indemnification. AUTHOR shall indemnify, defend and hold harmless INNER CITY GAMES DESIGNS from any and all damages, claims, suits or costs relating to AUTHOR’s business activities and ownership of, copyright, and entitlement to Work.
15. Miscellaneous
15.1 Entire Agreement. This document constitutes the entire agreement between the parties, all oral agreements being merged herein, and supersedes all prior representations.
15.2 Amendment. The provisions of this Agreement may be modified at any time by agreement of the parties. Any such agreement hereafter made shall be ineffective to modify this Agreement in any respect unless in writing and signed by the parties against whom enforcement of the modification or discharge sought.
15.3 Succession. Subject to the provisions otherwise contained in this Agreement, this Agreement shall inure to the benefit of and be binding on the successors and assigned of the respective parties hereto.
15.4 Notices. Any notice under this Agreement shall be in writing, and any written notice or other document shall be deemed to have been duly given on the date of personal service on the parties or on the fifth business day after mailing, if the document is mailed first class mail addressed to the parties at the addresses set forth below or at the most recent address specified by the addressee through written notice under this provision.
16. Attorney’s Fees; Prejudgment Interest. If the services of any attorney are required by any party to secure the performance hereof or otherwise upon the breach or default of another party to this Agreement, or the rights or duties of any person, the prevailing party is entitled to reasonable attorneys fees, costs and other expenses, in addition to any other relief to which such party may be entitled. Any award of damages following judicial remedy or arbitration as a result of the breach of the Agreement or any of its provisions shall include an award of prejudgment interest from the date of the breach of the Agreement at the maximum amount of interest allowed by law.
17. Counter Parts. This Agreement may be executed in any number of counterparts with the same effect as if the parties had all signed the same document. All counterparts shall be construed together and shall constitute one agreement. If the parties sign on different dates, this agreement is effective on the date that AUTHOR signs.
18. Governing Law. The rights and obligations of the parties and the interpretation and performance of this Agreement shall be governed by the law of Illinois, including its conflict of laws rules.
19. Severability. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be treated to reflect as nearly as possible the original intentions of the parties in accordance with applicable Law, and the remainder of this Agreement shall remain in full force and effect as if the Agreement had been entered into without the invalid provision.
20. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall whenever possible be cumulative with all other remedies at law or in equity.

IN WITNESS WHEREOF, the parties have signed this Agreement on the date indicated below:

___________________________ _________________________
AUTHOR INNER CITY GAMES DESIGNS

___________________________ 36460 N US Hwy 45

___________________________ Lake Villa, IL 60046

Date_______________________ Date______________________
*************************************************************

Those harboring thoughts about workking with us may also infer that this is a fairly standard form of one of our contracts... although royalty and up-front amounts do vary by game.

Ply me with questions, chide me for my inadequacies... its all here for that purpose gang.

XXOOCC

Anonymous
The "Winner's" Publishing Contract

I forgot to add... its implied in the contract form, but I'll confirm it... there might be more than one winner....

...although at least one is guaranteed in the contest :-).

XXOOCC

Brykovian
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The "Winner's" Publishing Contract

The only part of the doc that I have a question on is the "exclusivity" of the license.

The inital points about the license (1. Grant of License, 2. Term) do not mention that the license is exclusive in any way. However, later on (13. Failure of AUTHOR to Maintain Exclusivity) it seems pretty clear that this would be an exclusive thing.

Besides a clarification on that, I also wonder how far the that exclusivity would extend. Would producing another game based upon the same thing but in another medium ("computer version" for example) or derivative works ("fiction novel based upon the game") be considered a failure to maintain exclusivity?

-Bryk

Brykovian
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The "Winner's" Publishing Contract

I was wrong ... I have another question. In your royalties section (part 5), I noticed that the largest suggested retail price was $7.96 ... does that mean the games submitted to the future contest should have an expense of no more than $1.33 (one-sixth the SRP)?

-Bryk

Anonymous
The "Winner's" Publishing Contract

Not on this contract, Bryk. Only those re-uses of the material that might adversely affect sales/use by our company would be considered a breach.

I promise we won't sue if you license the computer game or write a novel.. it'll only boost sales :-).

Writing a 'very similar game' and selling it to Mayfair might get you into trouble, however... although as this is in reference to copyright, not patent, 'similar but not the same' is not something we could prevent, so long as the language of the explanations and rules differed, you could even do that.

Note that under the contract, if there is NO meeting of the minds, as it were, all rights revert to the author after 18 months other than copies that might still be in inventory here. For those worried on that score, we run our inventory "just in time", and it makes no financial sense for us to produce "100 extra copies of the game" just so that we could sell it for longer. In addition, we'd still owe royalties to the author when those copies did sell, even if it were beyond the end of the contract.

The '18-month clock' starts ticking once you've been named a winner, as well.. so we figured that the contract would allow us 12-14 months of time in the actual market, with the remainder of the 18 months being used for development and pre-release marketing.

XXOOCC

Anonymous
The "Winner's" Publishing Contract

I was wrong ... I have another question. In your royalties section (part 5), I noticed that the largest suggested retail price was $7.96 ... does that mean the games submitted to the future contest should have an expense of no more than $1.33 (one-sixth the SRP)?

I have never answered this "practicality issue" in full.. and I shall do so now.

An expense of $1.33 would get you a VERY high practicality score... however, a higher cost will NOT disqualify your game.

On an $8 game, we gross about $3.20 at wholesale... which means your game probably won't wind up with a "zero" practicality score until you get to about $2.75... and that costs in between $1.33 and $2.75 will simply affect your score, not your contest eligibility.

Here's hoping that allows you a sigh of relief.

I'm editing the rules for The Wrath of Cons right now, after which I can do a fairly solid cost estimation, which I plan to share here.

It currently has:
(1) 1/2 page (8X5) scorepad... prolly with 48 sheets
(2) 1/2 pages of foldover markers (cardstock)
(1) 11X15 gameboard printed duplex
(6) plastic T-stands
(1) dice
(1) 6-page (duplex printed) rulebook (24 pages assembled and folded in 8.5 X5.5 format)

I don't have the costing figures in front of me... but that probably comes close to busting the $1.33 level, if not actually so doing.

Anonymous
The "Winner's" Publishing Contract

Ok, I got off of my duff to illustrate what Bryk is talking about, and to give an example of how it would be viewed.

Here are those components (again) for "The Wrath of Cons" , and their costing...

(1) 1/2 page (8X5) scorepad... prolly with 48 sheets ($0.72 +$0.01 trim = $0.73)
(2) 1/2 pages of foldover markers (cardstock) ($0.09)
(1) 11X15 gameboard printed duplex ($0.15)
(6) plastic T-stands ($0.12)
(1) dice ($0.03)
(1) 6-page (duplex printed) rulebook (24 pages assembled and folded in 8.5 X5.5 format) ($0.27 + $0.10 coallation) ($0.37)

So... $1.49 + $0.15 for parts coallation and stuffing... or a total of $1.64.

I am over!... but not outside the realm of do-able. It does mean that I will look at putting fewer pages in the pads.... 35 pages to the scorepad, and a note to purchaser that they should feel free to photocopy them, would not impact 'perceived value' too heavily, would certainly not change the game at all, and would bring my costing down to $0.53 on the pads and my overall cost to $1.44... which is pretty darn close... although I'd doc myself a couple of points (2-3) for not making it.

Why a variable amount? Because if the perceived value of the game is such that 'being over a bit' will increase sales significantly, I would deserve less of a penalty.

XXOOCC

zaiga
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The "Winner's" Publishing Contract

The contract looks fine, Chris. No comments about that for the moment.

I do have a question about the components that can be used. Is it possible to use cards in the game? The cards don't necessarily need to shuffle well, but it is important that they are thick enough so you cannot see through them. Is this possible?

- René Wiersma

Johan
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The "Winner's" Publishing Contract

Hello XXOOCC

First of all, I know that ISGD is a small company and the game will be sold in between 100 - 2000 copies. Probably will the contract not be any problem, but it is better to solve the problems before it arrives.

Some questions and remarks on the contract.

- Will this contract (and the royalty) only be for US or worldwide?
- I do not understand p 3 (Right of first refusal).
- The contract should also say that ISGD should not have the right so sell or transfer the royalty of the game to a third part. (Nearly as in p 11).
- The AUTHOR should, when he signs this contract, guarantee that the work is an original work (Not a stolen from somebody else).
- P 2 should have a date and more specific, the conditions of the start of the contract. The contract has two timeframes (and should be divided in two parts). The first timeframe is during the competition, when ICGD has exclusive right to say yes or no to the game. The other is the royalty to the game.
- P 5.3 is a little bit tricky. I can understand that ISGD wants to be able to get rid of games that could not be sold, but the text gives ISGD right to use the product in a marketing campaign without the designer get anything (more then the initial $50.00). (I suggest that this paragraph is rewritten).
- How should disagreement about the contract is solved. What law should be used (I sign the contract in Sweden and you in USA)?
- Who has the right to the royalty of spin-off products (yea? I know? I'm dreaming).
- Does ISGD or the AUTHOR the right to do an own expansion of the game?

// Johan

Anonymous
The "Winner's" Publishing Contract

OKay Johan... from the top :-).

<<First of all, I know that ISGD is a small company and the game will be sold in between 100 - 2000 copies. Probably will the contract not be any problem, but it is better to solve the problems before it arrives. >>
I'm not upset, so don't worry... but its I"C"GD (Inner City Games Designs)... and I know its trite, but when it comes to contracts, size doesn't matter.

<<Will this contract (and the royalty) only be for US or worldwide? >>
Worldwide. ICGD is currently distributed in both the US and seven foreign countries (England, Canada, Australia, Japan, Germany, Italy, and France).

<<I do not understand p 3 (Right of first refusal). >>
If you 'sign' the original contract with us, when it expires you need to give us first shot at a new contract, although as the terms will be negotiated, if we can't afford you, you can still go elsewhere. The idea is that you have to give us a chance to make you want to re-up with us. After all, we invested our time and effort into marketing your game!... and again, if we can't come to a meeting of the minds, you can then go elsewhere. (For those wondering, a two -week time frame would be considered sufficient for this, "attempt".)

<<- The contract should also say that ISGD should not have the right so sell or transfer the royalty of the game to a third part. (Nearly as in p 11). >>

This is actually stipulated in #11. Neither royalties nor license may be transferred.

<<The AUTHOR should, when he signs this contract, guarantee that the work is an original work (Not a stolen from somebody else). >>
Thats covered by 14.1 &14.2

<< P 2 should have a date and more specific, the conditions of the start of the contract. The contract has two timeframes (and should be divided in two parts). The first timeframe is during the competition, when ICGD has exclusive right to say yes or no to the game. The other is the royalty to the game. >>
IMO, its not necessary. The contract goes into effect the day you are declared "a winner", and you're guaranteed a 100 unit print run that goes through distribution. It behooves us to get it out there as quickly as possible, so as to have the longest time possible to reap the rewards via sales... to delay release costs us money. The Royalty payment timeframe is mentioned under #6. (semi-annually , i.e. every six months, and again, with the clock starting when a winner is declared.)

<<P 5.3 is a little bit tricky. I can understand that ISGD wants to be able to get rid of games that could not be sold, but the text gives ISGD right to use the product in a marketing campaign without the designer get anything (more then the initial $50.00). (I suggest that this paragraph is rewritten). >>
The reason for the lack of royalty on "marketing copies" is so that copies given for magazine review, as prizes during promotional demos, copies sent to buyers at distributors, etc., don't wind up costing us money. Thats all thats for. Being that we run our inventory "just in time", we have never run into a situation where there are more than perhaps 12 'games [that] could not be sold'. There are never that many in inventory to begin with.
In addition, this allows the contract to terminate at the end of the 18-month cycle, so long as it can be determined (by ICGD) how many, if any, copies remain that can and will be sold (and therefore have a royalty paid immediately rather than after sale), and how many will simply be given away for various purposes.

<<- How should disagreement about the contract is solved. What law should be used (I sign the contract in Sweden and you in USA)? >>
Thats covered under #18... and it is according to the law of Illinois and the US. We have to do that over here because in our screwy country laws can differ (especially in civil matters) from state to state.

<< Who has the right to the royalty of spin-off products (yea? I know? I'm dreaming). >>
Actually, the author does... we get a license, you maintain copyright to the work.

- <<Does ISGD or the AUTHOR [have] the right to do an own expansion of the game? >>
You do, with this caveat as expressed under #13:
"Sale or relicense of Work by AUTHOR for use in any gaming or game-related product during the term of this Agreement, is a serious breach of the Agreement and will result in a forfeiture of the original amount paid."
IOW... make sure that as an expansion, it is unique... if there is reprint material in it, you may be pushing the limits a bit. If not, its all yours baby. I'd love to be the 'guy that launched you'. :-)

...and I'd like to add....

I DO want the entire "after-contest" operation to be highly visible here on the boards, both so that I can get input from folks here on how I might do things better, and so that you all here can see how a small-presser like us pulls this sort of thing off... without having a six-figure budget.

...but it should also serve the function of giving you a pocketful of witnesses to anything we might do that would be untoward. I can tell you that we won't, but why should you trust us?... and I couldn't agree more with that sentiment. But with about 100 onlookers, it will be pretty darn difficult for us to "pull something".

...and yes, thats on purpose too :-).

XXOOCC

doho123
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The "Winner's" Publishing Contract

I'm pretty interested in when this thing officially starts!

Oh, how does 6 rocketships, one 1/4 page scorepad (4.25 X 5.5), one 1/2 board, and a rules sheet sound for practicality?

Anonymous
The "Winner's" Publishing Contract

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Sounds good actually... Sounds like "under a buck" from where I sit...

On cards...
"Incidental Cards" can be done on 65# cardstock and cut out, either by the player or us... and there are many 'stocks' like heavy parchment, that are fairly opaque as far as the "see through" aspect is concerned.

BUT.. if anyone has ever played "Divine Right" or similar games that have cards of this nature, you do need to be sure that the cards aren't going to be used much, and especially that they won't be "held in a hand" as this seems to be the main reason for "card wear."

"Draw one and place it in front of you" as a mechanic does work ok with these types of cards.

Anonymous
The "Winner's" Publishing Contract

...and I am as yet unsure of the start date for this contest.. my plate being as yet a bit too full for that committment. I'll be at CODCON (at the College of Dupage just outside of Chicago, Illinois) this weekend, but I am leaning towards a May 1st start-up date, with a June 15th closing date for entries, so be warned. :-)

...I may move the start-up date to a later time, but do plan on allowing only 6 weeks for entries.
I posted the contract to let everyone know that I am making progress getting this organized, and I should also have "official rules" to post at least a week before the contest begins.

For those wondering... entries submitted that are NOT declared winners will remain ENTIRELY the property of their authors. "Submission" does not carry with it any implication of rights to ICGD.

Winners will have the right to refuse their 'winnings' if they wish as well.. they may choose not to have their game published under ICGD, but they will forfeit all 'prizes' (the $50) as well. They are allowed to retain their title as a winner of the contest, if they wish to use that as advertising to pitch their game elsewhere.

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