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FINAL Model B TEMPLATE250210ABCDEFGHI Memorandum of Agreementmade this 20th day of December 2010BETWEENABWHEREAS the Parties wish to collaborate to reprint, translate and/or adapt as China Editions (the China Editions), for the Peoples Republic of China (excluding Hong Kong, Macau and Taiwan), titles originally published by Cambridge University Press (the Original Works), and to publish the China Editions under the joint imprints of Cambridge University Press and CHINESE PUBLISHER, and then to promote, distribute and sell the China Editions in the Peoples Republic of China (excluding Hong Kong, Macau and Taiwan). IT IS MUTUALLY AGREED between the Parties hereto as follows:Principles of collaboration1.1 Publication of the China Editions shall be at the risk and expense of the Parties jointly, and costs and revenue shall be divided between the Parties as provided under this Agreement.1.2 Where copyright in the Original Works is held by Cambridge solely, copyright in the corresponding China Editions shall be held jointly by Cambridge and CHINESE PUBLISHER during the term of this Agreement without prejudice to Cambridges sole and exclusive rights in the Original Works. Where copyright in the Original Works is not held by Cambridge solely or Cambridge holds only the necessary rights under license from the copyright holder of the Original Works for, amongst other things, the publication of the Original Works as the China Editions, Cambridge and CHINESE PUBLISHER shall jointly own copyright in Cambridges and CHINESE PUBLISHERS new contributions to the China Editions (i.e. new content, design, layout, translations etc., not found in the Original Works) during the term of this Agreement without prejudice to the copyright holders own rights in the Original Works as used in the China Editions. For the avoidance of doubt, except as expressly mentioned in this Agreement, neither Party shall exercise or permit the exercising of any primary or subsidiary rights in the China Editions (by, for example, publishing or licensing rights permitting the publication of, amongst other things, reprint, revised, derivative, translation and adapted editions of the China Editions) on its own or jointly with any third-party without securing the prior written agreement of the other Party.1.3 CHINESE PUBLISHER shall have the right to use the name and logo of Cambridge University Press solely in connection with the publication, promotion, distribution and sale of the China Editions during the term of this Agreement only and no other use may be made of the said name and logo without the prior approval of Cambridge in writing. For the avoidance of doubt, the China Editions shall bear the joint imprints of Cambridge University Press and CHINESE PUBLISHER only, and shall be published under Chinese ISBNs provided by CHINESE PUBLISHER, such Chinese ISBNs having been lawfully procured by CHINESE PUBLISHER for the purpose of publishing the China Editions.1.4 CHINESE PUBLISHER shall undertake the promotion, distribution and sale of the China Editions in the Peoples Republic of China (excluding Hong Kong, Macau and Taiwan) only (this territory hereinafter referred to as the Area). CHINESE PUBLISHER shall not promote, distribute or sell the China Editions outside the Area, or distribute or sell them directly or indirectly to any person or organisation in the Area knowing or having reason to believe that they shall be re-sold outside the Area. 1.5 The Original Works to be published as China Editions are listed as Schedule A to this Agreement. Further schedules may be added to this Agreement (e.g. as Schedules A.2, A.3, A.4 etc.) to provide for the publication of additional Original Works as China Editions subject to the mutual agreement of the Parties in writing.1.6Nothing in this Agreement shall be construed as preventing Cambridge from publishing or co-publishing on its own or with any third-party, or permitting the publishing or co-publishing by any third-party of, the Original Works or parts thereof in any form or media provided that during the term of this Agreement Cambridge shall not publish or co-publish, or permit the publishing or co-publishing by third-parties, within the Area, of any work using the Original Works or parts thereof that is in form, content and media closely similar to the China Editions without first securing CHINESE PUBLISHERs consent in writing (e-mail correspondence shall suffice).1.7For the avoidance of doubt, neither Party shall:1.7.1represent itself as an agent of the other Party for any purpose;1.7.2give any condition or warranty or make any representation on the other Partys behalf or commit the other Party to any contracts or obligations;1.7.3without the other Partys prior written consent make any promises or guarantees in relation to the China Editions; or1.7.4otherwise incur any liability on behalf of the other Party.Responsibilities of the Parties2.1.1Cambridge shall be responsible for obtaining the consent of the copyright holders (and/or, where appropriate as determined by Cambridge solely, the authors) of the Original Works to the publication of the China Editions.2.1.2CHINESE PUBLISHER shall be responsible for obtaining all necessary permissions for the reproduction in the China Editions of any third-party materials that may be included in the China Editions (including any third-party materials in the Original Works reproduced in the China Editions), and for the payment of relevant fees. CHINESE PUBLISHER indemnifies Cambridge against any loss, injury, damage and expense (including any legal costs and disbursements paid by Cambridge on the advice of Counsel to compromise or settle any claim) occasioned to Cambridge in consequence of any failure by CHINESE PUBLISHER to discharge its obligations under this clause 2.1.2 and clause 2.2 below.2.2CHINESE PUBLISHER shall be responsible for the agreements with any adapters, translators, illustrators and other contributors to the China Editions, such agreements to be on a work-for-hire basis whereby full copyright in the contributions is assigned to Cambridge-CHINESE PUBLISHER jointly, and for the payment of relevant fees. 2.3CHINESE PUBLISHER in consultation with Cambridge, and subject to Cambridges approval of the Print-Run Report, shall be responsible for the reprinting, translating and/or adaptation of the Original Works as the China Editions, and for the editing and design of the China Editions. The CHINESE PUBLISHER shall cause any reprinting or translation of the Original Works as the China Editions to be made faithfully and accurately, and any adaptation of the Original Works as the China Editions shall be made in a manner consistent with an adaptation plan submitted to and approved by Cambridge in writing (e-mail correspondence shall suffice).2.4.1Cambridge shall, at its sole discretion, provide CHINESE PUBLISHER with electronic files for Original Works existing in print format, and with master tapes/CDs and/or DVDs for Original Works existing in audio-visual formats. CHINESE PUBLISHER shall be responsible for paying the relevant fees for these electronic files and master tapes/CDs and/or DVDs, and CHINESE PUBLISHER shall be responsible for the manufacture of the China Editions subject to Cambridges approval of the production costs (which shall include all pre-press and manufacturing costs, wastage and all taxes except withholding tax). CHINESE PUBLISHER may use the materials provided by Cambridge under this clause2.4.1 only to fulfil CHINESE PUBLISHERs obligations under this Agreement, such use to be in strict compliance with any terms of use that may be imposed by Cambridge at its sole discretion from time to time.2.4.2CHINESE PUBLISHER shall provide Cambridge with cover, back cover, copyright page and spine proofs, and such other proofs of all or part of the China Editions as may be requested by Cambridge from time to time, for Cambridges approval at least one (1) month prior to manufacture. Cambridge shall submit its feedback within twenty-one (21) calendar days. If Cambridge cannot give its feedback within the days specified, CHINESE PUBLISHER shall proceed with the manufacturing of the China Editions on the understanding that Cambridge has no objections and gives its approval. CHINESE PUBLISHER shall provide Cambridge with copies of all final electronic files of the China Editions in the format(s) requested by Cambridge.2.5.1CHINESE PUBLISHERs Print-Run Report for each China Edition shall specify its list price in local currency, discount, sales invoice price, net price, printing number, print-run, production costs (which shall include all pre-press and manufacturing costs, wastage and all taxes except withholding tax), intended publication date for the avoidance of doubt, time shall be of the essence and failure to meet the intended publication deadline (or any alternative publication date that may subsequently be agreed between the Parties in writing e-mail correspondence shall suffice) shall be a material breach of this Agreement, minimum print-run and sales forecasts for a five-year period and total payment amount, and shall be subject to Cambridges approval, such approval to be secured in advance of CHINESE PUBLISHER incurring any costs in respect of the China Editions and evidenced by the adding of the Print-Run Report as a Schedule B to this Agreement as set out under clauses 3.1.1 and 3.1.2 below. 2.5.2CHINESE PUBLISHER agrees to notify Cambridge of any planned reprinting of the China Editions with a Print-Run Report and shall follow the guidelines as covered in clause 2.5.1 above. 2.6.1Cambridge shall be entitled to arrange for an independent auditor to undertake an annual audit at CHINESE PUBLISHERs warehouse on the number of copies of each of the China Editions in stock. The cost of such inspection shall be borne by Cambridge unless there is a discrepancy of more than 5% between the actual and reported accounts. In that event, the cost shall be borne by CHINESE PUBLISHER who shall immediately pay this cost together with any monies due to Cambridge as a result of the discrepancy.2.6.2Cambridge or its appointed independent auditor shall be entitled to inspect CHINESE PUBLISHERs records and accounts relating to this Agreement at any time during CHINESE PUBLISHERs office hours by giving not less than ten (10) calendar days written notice of its intention to do so. The cost of such inspection shall be borne solely by Cambridge unless there is a discrepancy of more than 5% between the actual and reported accounts. In that event, the cost shall be borne by CHINESE PUBLISHER who shall immediately pay such cost together with any monies due to Cambridge as a result of the discrepancy.2.7.1CHINESE PUBLISHER shall be responsible at its own expense for the promotion of the China Editions within the Area.2.7.2Cambridge at its own expense and sole discretion shall provide CHINESE PUBLISHER with copies of available publicity materials for the Original Works (in the form of electronic files where possible), use of such publicity materials by CHINESE PUBLISHER to be strictly for the purposes of discharging its obligations under this Agreement and in accordance with any terms and conditions of use that may be imposed by Cambridge at its sole discretion from time to time. Further, Cambridge at its own expense and sole discretion shall support CHINESE PUBLISHERs promotion of the China Editions where such promotion is in accordance with the terms of this Agreement and is undertaken with the prior knowledge and consent of Cambridge.2.8.1CHINESE PUBLISHER shall at its own expense be responsible for registering the China Editions with the authorities of the Peoples Republic of China (including copyright registration) and for such other agreements and legal procedures as may be necessary to allow for production, publication, promotion, distribution and sale of the China Editions within the Area, and shall use its best endeavours to protect intellectual property rights (including copyright) in the China Editions within the Area. Cambridge shall use its best endeavours to protect intellectual property rights (including copyright) in the China Editions in the rest of the world. CHINESE PUBLISHER shall, upon request from Cambridge, provide Cambridge with copies of the copyright and other registration documents procured by CHINESE PUBLISHER under this clause 2.8.1.2.8.2It is agreed that if CHINESE PUBLISHER considers that the copyright in any of the China Editions has been or is likely to be infringed within the Area, it shall, on giving notice to Cambridge of such infringement and with Cambridges explicit written agreement, be entitled to use Cambridges name as a party to any action, including legal proceedings, that it considers necessary. Any profits or damages which may be received in respect of any infringement of copyright in any of the China Editions shall, after deduction of all costs and expenses, be divided equally between CHINESE PUBLISHER and Cambridge. 2.9On first publication, CHINESE PUBLISHER shall, at its own expense, send to Cambridge three (3) free copies of the China Editions. The complimentary copies shall be sent to: Legal & IP Manager, Asia, Cambridge University Press, 79 Anson Road, #06-04/06, Singapore079906 or to such other addressees which Cambridge may communicate to CHINESE PUBLISHER from time to time.Financial arrangements3.1.1CHINESE PUBLISHER shall prepare a Print-Run Report for each China Edition as specified in clause 2.5.1 above and, in the case of the first printing of each China Edition, shall submit it to Cambridge for Cambridges approval at least three (3) months before the intended publication date as reflected on such Print-Run Report. Where CHINESE PUBLISHER intends a reprinting of any China Edition, CHINESE PUBLISHER shall also prepare a Print-Run Report and shall submit it for Cambridges approval at least fifteen (15) calendar days before any planned reprinting date as reflected on such Print-Run Report. 3.1.2Following Cambridges approval of the Print-Run Report for the first printing of each China Edition, both Parties shall sign each such Print-Run Report which shall thereby be added to this Agreement as Schedule B (e.g. Schedules B.2, B.3, B.4 etc.). Print-Run Reports for reprinting of China Editions shall also be signed by the Parties and thereby be added as ScheduleB (e.g. as Schedules B.2 (2nd printing), B.3 (2nd printing), B.3 (3rd printing) etc.). 3.2Neither Party shall charge promotional costs and overhead costs including but not limited to staff costs, warehouse and office costs, travel expenses, to the Print-Run Report.3.3All stock of the China Editions manufactured under this Agreement shall be sold to CHINESE PUBLISHER (who shall therefore act as exclusive distributor for the China Editions throughout the Area), such sales being made at a discount of 45% off the agreed list price unless agreed otherwise in the corresponding Print-Run Report. 3.4Upon request by Cambridge, CHINESE PUBLISHER shall provide the number of copies of any or all of the China Editions sold and given away free-of-charge by CHINESE PUBLISHER in the previous twelve (12) months ending 31st December.3.5.1CHINESE PUBLISHER shall notify Cambridge in writing (e-mail correspondence shall suffice) whenever any China Editions are manufactured and, upon such notification, Cambridge shall raise a standard Sales invoice (in US Dollars) to CHINESE PUBLISHER for 50% of the net revenue for each China Edition (according to the ISBNs for such China Editions which the CHINESE PUBLISHER shall provide Cambridge with prior to the first time such China Editions are manufactured) based on the actual print run x actual unit list price in local currency x agreed discount (1%45%), such actual print run and actual unit list price in local currency not to be lower than as agreed in the corresponding Print-Run Report unless subsequently agreed between the Parties in writing otherwise (e-mail correspondence shall suffice).3.5.2Cambridge and CHINESE PUBLISHER shall each bear 50% of the production costs figure (which excludes the author royalties incurred on the China Editions, which shall be paid to the author by Cambridge solely and on behalf of CHINESE PUBLISHER) as agreed in each Print-Run Report.3.5.3CHINESE PUBLISHER shall be responsible for the production process and for payment of all production costs to production suppliers and manufacturers. For the avoidance of doubt, the production process shall be understood as all pre-press (i.e. editorial, permissions clearing, design and layout etc.) and manufacturing (i.e. paper, printing and binding (PPB) and replication etc.) activities. All production activities shall take place in the Area unless agreed otherwise by the Parties in writing (e-mail correspondence shall suffice).3.6.1Upon being notified by CHINESE PUBLISHER in accordance with clause 3.5.1 above that China Editions have been manufactured, Cambridge shall also raise a manual invoice (in US Dollars) to CHINESE PUBLISHER stating the total net payment amount due from CHINESE PUBLISHER to Cambridge for such China Editions which shall not be lower than as agreed on the corresponding Print-Run Report at Schedule B unless subsequently agreed between the Parties in writing otherwise (e-mail correspondence shall suffice).3.6.2Payment shall be made to Cambridge by CHINESE PUBLISHER in US Dollars within thirty (30) calendar days of Cambridges manual invoice issued under clause 3.6.1 above. All invoicing shall be in US Dollars converted at the prevailing inter-bank exchange rate as determined by Cambridge at date of invoice. 3.6.3Cambridge agrees to CHINESE PUBLISHER deducting the applicable withholding tax from the total net payment amount and CHINESE PUBLISHER agrees to provide Cambridge with the original tax receipt.3.7Payment shall be made to Cambridge at the following account:Account no USD 0003-001441-01-6-022Cambridge University Press79 Anson Road#06-04/06Singapore 079906Republic of SingaporeDBS Bank Ltd, Singapore No. 6, Shenton WayDBS BuildingSingapore 068809SWIFT Address: DBSSSGSGCHINESE PUBLISHER shall notify Cambridge (through relevant representatives) by e-mail whenever payment has been remitted to the Cambridge account.Ownership of stock4Upon being manufactured, stock of the China Editions shall be warehoused and insured by CHINESE PUBLISHER at its own expense. Full ownership of stock in the China Editions shall transfer to CHINESE PUBLISHER upon receipt, by Cambridge from CHINESE PUBLISHER, of the total net payment amount invoiced for such China Editions. Until such payment is received by Cambridge, stock of the China Editions shall be owned in equal shares by Cambridge and CHINESE PUBLISHER but all risk from the time of manufacture shall be borne by the CHINESE PUBLISHER. CHINESE PUBLISHER shall not remainder or waste stock of the China Editions without prior approval in writing from Cambridge (e-mail correspondence shall suffice).Term5Unless terminated under clause 6.1 below, this Agreement (once signed by both Parties) shall continue from the date at the head of this Agreement for as long as any Original Work continues to be published under this Agreement as a China Edition provided that in respect of each Original Work published under this Agreement as a China Edition, the Agreement shall continue for a minimum term of five (5) years from the date the Original Work is added to Schedule A of this Agreement unless agreed otherwise in that Schedule A (the minimum term). No less than six months before the expiry of the minimum term, the Parties may mutually
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