J Surg Rad

Journal of Surgical Radiology

Saturday, 01 May 2010 22:54 J Surg Rad
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Author Release

THIS AUTHOR RELEASE is made between the Surgisphere Corporation, located at 4706 Carmen Lane, Durham, North Carolina, 27707 (the “Publisher”), and the Author (“Author”).

WHEREAS, the Author shall deliver to the Publisher an article suitable for publication (the “Work”), or such other title as may be deemed appropriate by the Publisher. The Publisher shall publish the Work in accordance with and subject to the terms and conditions set forth below:

  1. MANUSCRIPT PREPARATION AND DELIVERY
    1. The Author shall obtain, without expense to the Publisher, written permission to include in the Work any copyrighted material which is not in the public domain, as well as any other material for which permission is necessary to satisfy the requirements of this Agreement. Medical patient releases shall be obtained from patients if information about them, illustrations, or photographs of them is used in the Work. These permissions must be consistent with the rights granted to the Publisher in this Agreement such that they cover all of the uses to which the material may eventually be put. The Author will deliver to the Publisher a copy of these permissions with the Work.
    2. The Author shall notify the Publisher in writing of the existence and location of all material taken from documents prepared and published by the United States government not subject to copyright.
    3. If such permissions are not obtained in a timely manner or in satisfactory form, the Author will cooperate with the Publisher in identifying substitute material and revising the Work accordingly.
    4. If the Author does not deliver the final complete manuscript according to the terms and conditions of this Agreement, the Work does not conform with the requirements noted herein, or if the Work is deemed otherwise unsatisfactory in form or content, the Publisher shall provide written notice stating the reasons for its determination that the manuscript or deliverables are unacceptable and providing the Author with thirty (30) days within which to make the required amendments, changes, and revisions to the satisfaction of the Publisher. In the event a satisfactory Work is not received by the publisher by this timeframe, or if the Author fails to deliver the final Work by the deadline in section 1(a), the Publisher may terminate this Agreement by written notice. The Publisher reserves the right to appoint another writer to finish the Work to the Publisher’s satisfaction. In such event, compensation shall be paid to the second co-author from the royalties otherwise due to the Author which shall be calculated in the sole discretion of the Publisher based on the Publisher’s reasonable determination of an equitable allocation in light of the scope and extent of the relative contributions of the co-authors. The Publisher may give credit to the co-authors in such order and manner which, in the judgment of the Publisher, fairly reflects their relative contributions to the Work.
    5. The Publisher shall have the right to make such editorial revisions and changes in the manuscript as it deems necessary. The Publisher shall prepare a Table of Contents, Table of Figures, List of Tables, and Index for the Work and shall deduct the cost thereof from any fees or royalties due to Author. All details of production, advertising, licensing, sale, and distribution of the Work, including title and pricing, shall be decided by the Publisher in its sole discretion.
    6. The Publisher shall send a written acceptance notice of the Work to the Author within thirty (30) days of receipt. If the Publisher does not produce the Work within six (6) months from the day of acceptance of the Work, the Author may by written notice to the Publisher request that the manuscript be published within six (6) months from Publisher’s receipt of such notice. If the Work is not published by that date, this Agreement shall terminate and all rights granted by the Author to the Publisher under this Agreement shall revert to the Author. In the event that this Agreement is terminated in accordance with the preceding sentence, neither party shall have any further obligations, duties or liabilities to the other.
  2. MULTIPLE AUTHORS
    1. If there are multiple Authors under this Agreement, the obligations of all the Authors shall be joint and several unless otherwise expressly provided in this Agreement, but the Publisher reserves the right to exercise any or all of its remedies against only the author who does not perform as provided in this Agreement.
  3. RIGHTS CONVEYED
    1. The Author assigns and transfers exclusively to the Publisher, to the maximum extent possible, the copyright and all other rights throughout the world in and to the Work, including without limitation the exclusive right to produce, publish, reproduce, transmit, sell and distribute the Work in all media now known or hereafter devised including without limitation all electronic and digital media, to create or have created any revision thereof, to make derivative works, adaptations, abridgements, translations, renewals, extensions, continuations, or to input the Work or parts thereof into any print or electronic product, and to license and authorize others to do so. The Author understands that this assignment and transfer means that the Author has no independent right to assign or transfer the Work in whole or in part to third parties or to directly exploit the Work. The Author appoints the Publisher as its attorney-in-fact to execute any documents the Publisher deems necessary to record any of these grants with the United States Copyright Office or elsewhere.
    2. In the event the Author wishes to utilize the material contained in the Work in the Author’s other works or presentations, it will be in accordance with the terms of the Creative Commons Attribution License Attribution 3.0 United States, published in Appendix A.
  4. AUTHOR’S WARRANTY
    1. The Author represents and warrants to the Publisher that the Author has full power and authority to enter into this Agreement and to grant the rights granted in this Agreement; that the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the copyright owners; that the Work does not contain any libelous or obscene material or injurious formulas, recipes, or instructions; that the Work does not infringe any trade name, trademark, or copyright; that the Work does not invade or violate any right of privacy, personal or proprietary right, common law or statutory right, federal or state regulation, or health care privacy regulations; that the Work is original and previously unpublished except for third-party material that is either public domain or for which appropriate permission has been obtained; and that the material contained in the Work is accurate and would not cause injury if accurately used or followed.
    2. The Author shall indemnify the Publisher and its licensees and assignees under this Agreement and hold them harmless from any and all losses, damages, liabilities, costs, charges, and expenses, including reasonable attorneys’ fees, arising out of any breach of any of the Author’s representations and warranties contained in this Agreement or third-party claims relating to the matters covered by these representations and warranties. In addition to other remedies available to the Publisher, the Publisher may charge the amount of any such losses, damages, liabilities, costs, charges, and expenses against any sums accruing to the Author under this Agreement. The provisions of this Section 4 shall survive any termination of this Agreement.
  5. COMPETING WORKS
    1. While this Agreement is in effect, the Author shall not, without the prior written consent of the Publisher, write, edit, print, or publish, or cause to be written, edited, printed, or published, any other edition of the Work, whether revised, supplemented, corrected, enlarged, abridged, or otherwise, or any other work of a nature which might interfere with or injure the sales or licensing of the Work by the Publisher as permitted under this Agreement, or allow the use of the Author’s name in connection with any such work. If the Publisher reasonably believes that the Author has breached the provisions of this Section 5, the Publisher may retain, in addition to other remedies available to the Publisher, all sums accruing to the Author under this Agreement until the matter has been resolved.
  6. PUBLICATION OF THE WORK
    1. After giving written notice to the Author that it has accepted the Work as being satisfactory for publication in the Publisher’s sole judgment, the Publisher shall publish the Work as its own expense at such time and in such style and manner and with such trademarks, service marks, and imprints of the Publisher, and sell the Work at such prices, as it shall deem suitable. The Publisher shall publish the Work with a copyright notice and may deem to register the Work in the name of the Publisher in compliance with the United States copyright laws. The Author shall be given credit as the author of the Work in the same name as that which first appears above, unless the Publisher is notified in writing by the Author to the contrary. The Publisher shall have the right to use the Author’s name, likeness, and biographical information in the Work and in all advertising for the Work.
    2. The Author authorizes use of the Author’s name, image, likeness, voice, biography, and professional affiliations (at the Publisher’s discretion) for purposes of advertising, promoting and publicizing the Work and all updates and derivatives thereof.
  7. REVISED EDITIONS
    1. The participation of the Author in all revisions shall only occur upon mutual written agreement. The Publisher shall have the right to have the Work revised by a reviser chosen by the Publisher in its sole discretion. The Author shall continue to be paid royalties as set forth hereunder for such revision, less any compensation paid to the reviser, which shall be calculated in the sole discretion of the Publisher based on the Publisher’s determination of an equitable allocation in light of the scope and extent of the revisions.
    2. When publishing revisions or new editions, and in the promotion thereof, the Publisher may give credit to the Author and any successor of a person comprising the Author in such order and manner which, in the judgment of the Publisher, fairly reflects their relative contributions to such revision or new edition, and, if appropriate, in the judgment of the Publisher, eliminate or retain the name or names of the person or persons comprising the Author who do not participate or collaborate in such revision or new edition.
  8. COMPLIMENTARY COPIES
    1. The Journal of Surgical Radiology is an open access journal and complimentary access to the digital version is provided online.
  9. OUT OF PRINT
    1. When in the judgment of the Publisher the demand for the Work is no longer sufficient to warrant its continued publication, the Publisher shall have the right to discontinue publication and declare the Work out of print.
    2. If the Work is not for sale in at least one edition or medium (including any revised, reprint, print, or electronic edition) published by the Publisher or under license from the Publisher and, within twelve (12) months after written demand by the Author, the Publisher or its licensee fails to offer it again for sale, then this Agreement shall terminate and all rights granted to the Publisher in it shall revert to the Author, except for any material prepared by or obtained at the expense of the Publisher. If there are multiple authors under this Agreement, they shall take individual ownership, in proportion to their respective shares of royalties under this Agreement, of all rights owned jointly by them at the time of termination.
    3. The termination of this Agreement under this Section 10 shall be subject to any license, contract, or option granted to third parties by the Publisher before the termination and the Publisher’s right to its share of the proceeds from such grants after the termination, and the Publisher’s continued right to sell all remaining bound copies and sheets of the Work and derivative works which are on hand or in process at the time of termination.
  10. APPLICABLE LAW
    1. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of North Carolina (the “Governing State”), regardless of the place of its execution or performance. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Governing State with respect to all disputes or matters arising out of or pertaining to this Agreement.
  11. ASSIGNMENTS
    1. The Author may not assign this Agreement or assign or delegate the Author’s obligations hereunder without the prior written consent of the Publisher and any such assignment without the required written consent shall be deemed to be null and void. The Publisher may assign this Agreement. Any provision in this Agreement to the contrary notwithstanding, any assignment or transfer of all or substantially all of the rights transferred to the Publisher in this Agreement in connection with the assignment or other transfer of this Agreement in its entirety by the Publisher will not be deemed a sale, assignment, license or other transfer of rights which would entitle the Author to the payment of a royalty or a share of the Publisher’s income from any such assignment or transfer of rights or of this Agreement. Subject to the foregoing, this Agreement will be binding on the parties signing it and on all their heirs, legal representatives, successors and permitted assignees.
  12. COMPLETE AGREEMENT
    1. This Agreement constitutes the complete understanding of the parties and supersedes all prior agreements of the parties related to the Work. No amendment or waiver of any provision of this Agreement shall be valid unless in writing and signed by all parties affected by the amendment or waiver. The provisions of this Agreement shall be severable, and in the event that any provision of this Agreement is found to be legally unenforceable, such unenforceability shall not prevent the enforcement of any other provision of this Agreement.
    2. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of that right at any time thereafter.
    3. Nothing in this Agreement shall be deemed to create any employer/employee, agency, fiduciary, joint venture or other similar relationship between the parties.
    4. The provisions set forth in this Agreement are for the sole benefit of the parties hereto and their respective successors and assignees and shall not be construed as conferring any rights on any other persons or entities.
    5. After receipt of the manuscript and all other materials required to be delivered to the Publisher under this Agreement, the Publisher will take reasonable care but shall not be held liable for accidental loss or damage thereof.
  13. SUPPLEMENTARY PROVISIONS
    1. As soon as practicable, but in any event prior to delivery of the complete, final manuscript of the Work, the Author shall supply the Publisher with a complete, up-to-date list of all such contributors with complete, current mailing address and chapter details. The terms of this paragraph shall not apply to revised editions, electronic forms, derivative works, or other versions of the Work.

IN WITNESS WHEREOF, the parties hereby sign this Agreement as of the date first set out above.

Appendix A

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.

BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. TO THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A CONTRACT, THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

1. Definitions

  1. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with one or more other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.
  2. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License.
  3. "Licensor" means the individual, individuals, entity or entities that offers the Work under the terms of this License.
  4. "Original Author" means the individual, individuals, entity or entities who created the Work.
  5. "Work" means the copyrightable work of authorship offered under the terms of this License.
  6. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.

2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

  1. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;
  2. to create and reproduce Derivative Works provided that any such Derivative Work, including any translation in any medium, takes reasonable steps to clearly label, demarcate or otherwise identify that changes were made to the original Work. For example, a translation could be marked "The original work was translated from English to Spanish," or a modification could indicate "The original work has been modified.";;
  3. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;
  4. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works.
  1. For the avoidance of doubt, where the Work is a musical composition:
    1. Performance Royalties Under Blanket Licenses. Licensor waives the exclusive right to collect, whether individually or, in the event that Licensor is a member of a performance rights society (e.g. ASCAP, BMI, SESAC), via that society, royalties for the public performance or public digital performance (e.g. webcast) of the Work.
    2. Mechanical Rights and Statutory Royalties. Licensor waives the exclusive right to collect, whether individually or via a music rights agency or designated agent (e.g. Harry Fox Agency), royalties for any phonorecord You create from the Work ("cover version") and distribute, subject to the compulsory license created by 17 USC Section 115 of the US Copyright Act (or the equivalent in other jurisdictions).
  2. Webcasting Rights and Statutory Royalties. For the avoidance of doubt, where the Work is a sound recording, Licensor waives the exclusive right to collect, whether individually or via a performance-rights society (e.g. SoundExchange), royalties for the public digital performance (e.g. webcast) of the Work, subject to the compulsory license created by 17 USC Section 114 of the US Copyright Act (or the equivalent in other jurisdictions).

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved.

4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:

  1. You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of a recipient of the Work to exercise the rights granted to that recipient under the terms of the License. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. When You distribute, publicly display, publicly perform, or publicly digitally perform the Work, You may not impose any technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. This Section 4(a) applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any credit as required by Section 4(b), as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any credit as required by Section 4(b), as requested.
  2. If You distribute, publicly display, publicly perform, or publicly digitally perform the Work (as defined in Section 1 above) or any Derivative Works (as defined in Section 1 above) or Collective Works (as defined in Section 1 above), You must, unless a request has been made pursuant to Section 4(a), keep intact all copyright notices for the Work and provide, reasonable to the medium or means You are utilizing: (i) the name of the Original Author (or pseudonym, if applicable) if supplied, and/or (ii) if the Original Author and/or Licensor designate another party or parties (e.g. a sponsor institute, publishing entity, journal) for attribution ("Attribution Parties") in Licensor's copyright notice, terms of service or by other reasonable means, the name of such party or parties; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and, consistent with Section 3(b) in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). The credit required by this Section 4(b) may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear, if a credit for all contributing authors of the Derivative Work or Collective Work appears, then as part of these credits and in a manner at least as prominent as the credits for the other contributing authors. For the avoidance of doubt, You may only use the credit required by this Section for the purpose of attribution in the manner set out above and, by exercising Your rights under this License, You may not implicitly or explicitly assert or imply any connection with, sponsorship or endorsement by the Original Author, Licensor and/or Attribution Parties, as appropriate, of You or Your use of the Work, without the separate, express prior written permission of the Original Author, Licensor and/or Attribution Parties.

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Termination

  1. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works (as defined in Section 1 above) or Collective Works (as defined in Section 1 above) from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.
  2. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

8. Miscellaneous

  1. Each time You distribute or publicly digitally perform the Work (as defined in Section 1 above) or a Collective Work (as defined in Section 1 above), the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.
  2. Each time You distribute or publicly digitally perform a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.
  3. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.
  4. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.
  5. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.
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