Далёкая музыка - [90]

Harper Row shall, with reasonable promptness, apprise Copex of any claim, demand or suit and Copex shall fully cooperate in the defense thereof. In the event of any claim, demand or suit Harper Row shall have the right to withhold payments due Copex under the terms of this agreement as security for Copex's obligations as stated herein.

Harper Row shall have the right to extend Copex's representations and warranties contained hereinabove to third parties with whom it makes agreements pursuant to the terms hereof (such as purchasers of subsidiary rights granted to Harper Row herein) and Copex shall be liable thereon to the [same extent as if such representations and warranties were originally made to such third parties. The warranties and indemnities as stated herein shall survive in the event this agreement is terminated. Harper Row shall notify Copex, in writing, of the identity of such third parties and of the nature of the agreements with such third parties.

9. Copex agrees that notwithstanding anything to the contrary contained in the Memorandum of Agreement and Schedule thereto, with regard to all copies of the hard cover book sold at discounts of fifty per cent (50 %) or more from Harper Row's suggested list price, the additional purchase price shall be ten per cent (10 %) of the amount actually received by Harper Row. Nothing herein contained shall be deemed to reduce the purchase price as stated in the preliminary Memorandum of Agreement and Schedule, with regard to any other copies sold in the regular channels of distribution.

10. Copex agrees that there shall be no purchase price Kayable on copies of the said work used by Harper for promotional purposes or sold by it at a price equal to or below;he cost of manufacture.

11. If Harper Row makes any sales of the said work by means of direct mail, circular, or coupon advertising, newspapers and periodicals, Copex agrees to accept five per cent (5 %) of the retail price thereof as the purchase price payable In such sales in lieu of the price stated in the preliminary Memorandum of Agreement and Schedule.

12. Harper Row agrees that semi-annual statements of account as of June 30 and December 31 of each year shall be rendered by mail on October 1 and April 1 accompanied by remittance for respective amounts due thereunder. Such statements shall contain the purchase price due from the sales of said book and the disposition of any subsidiary rights. Should Copex receive an overpayment of purchase price on copies reported sold but subsequently returned, it agrees that Harper Row may either deduct such overpayment from future purchase price due under this agreement or request an immediate return of such overpayment, which return shall be made promptly on receipt of a request therefor made by Harper Row. If, in the opinion of Harper Row, there is a risk of booksellers returning for credit a substantial quantity of unsold copies of the said book, Harper Row may withhold a reasonable reserve to compensate for such returns from the purchase price due Copex. Such reserve may be withheld only for the first three semi-annual accounting periods following the period in which publication of the hard cover book occurs.

13. Copex has delivered to Harper Row the complete manuscript in Russian, which manuscript has been translated into the English language by MRS. PRISCILLA JOHNSON McMILLAN. Both the translator and the translation have been approved by Copex and Harper Row. Harper Row agrees that all editions of the work published by it or licensed by it hereunder shall contain the translation exactly as approved by the parties hereto and without any changes, deletions or alterations thereof. It is further agreed that Copex will use its best efforts to obtain an assignment of copyright to the English language translation from the translator after publication by Harper Row, so that Harper Row may obtain its share of royalties and other revenues received from the use thereof.

14. In case of any infringement of the copyright to the work, Harper Row may, at its discretion, sue or employ such remedies as it deems expedient and if Copex agrees to such suit all such suits or proceedings shall be at the joint expense of both parties, and the net proceeds of any recovery shall be divided equally between them; if the copyright is in the name of Copex, such suit may be instituted by Harper Row in the name of Copex. If Copex refuses to join in an infringement proceeding, the proceeds of recovery shall be the sole property of Harper Row regardless of whether suit is instituted in the name of Copex.

15. Harper Row agrees to give Copex ten (10) copies of the said book without charge. Additional copies may be purchased by Copex at a discount of forty per cent (40 %) off the cover price.

16. This agreement may be assigned by either party without the consent of the other party, and its provisions shall bind and inure to the benefit of the parties and to their respective successors and assigns.

17. Both parties agree that in case the purchase price due Copex from the said work shall exceed Thirty-Five Thousand Dollars ($35,000) in any one calendar year after 1967, Harper Row shall apportion the payment or payments of all such excess over a period of years so that there shall not be paid by Harper Row to Copex, in any one year after 1967, an amount which shall exceed $35,000.