Friday, January 26, 2018

terms of contract; Audiobook Creation Exchange (ACX)

Audiobook Creation Exchange (ACX): "Wright Flight, LL"



ACX Audiobook Production Standard Terms

Last revised 06/01/2017

Version 2.1

These ACX Audiobook Production Standard Terms ("Terms") apply to the creation of an audiobook on the audiobook production service and rights marketplace available at www.acx.com ("ACX"). These Terms form part of each ACX audiobook production agreement between a Rights Holder and a Producer where the applicable deal confirmation page generated by ACX ("Deal Confirmation Page") references this specific Version 2.1 of the Terms (the "Agreement").
  1. Engagement to Produce. Rights Holder engages Producer to make an audio recording (the "Audiobook") of the book set forth in the Deal Confirmation Page ("Book") in the language(s) set forth in the Deal Confirmation Page ("Language(s)"). The Audiobook will be distributed in the territory or territories indicated in the ACX title profile for the Book (the "Territory"). Rights Holder will provide to Producer the final recordable manuscript for the Audiobook within 3 business days after acceptance of the offer. Producer shall keep the manuscript confidential and use it solely to produce the Audiobook and no other purpose.
  2. Production Schedule and Guidelines. Producer will deliver the first 15 minutes of the Audiobook to Rights Holder for Rights Holder's approval by the date set forth in the Deal Confirmation Page. Producer will deliver the completed Audiobook by the completion date set forth in the Deal Confirmation Page, as extended pursuant to Section 3(c) below, if applicable ("Completion Date"). Producer will produce the Audiobook in accordance with the ACX ACX Audio Submission Requirements posted on the ACX website as of the date of the Deal Confirmation Page. Producer and Rights Holder are both subject to the ACX Dispute Resolution Procedures set forth in the Account Holder Agreementas of the date of the Deal Confirmation Page. Producer may hire third parties to assist in the production of the Audiobook, including to perform services such as narrator, editor, or studio engineer. If Producer hires third parties in connection with the production of the Audiobook, Producer will engage the third parties using the appropriate ACX Form Independent Contractor Agreement supplied on ACX. Producer agrees to be responsible for the final production of the Audiobook, including adherence to all guidelines and requirements set forth in the ACX Audio Submission Requirements, even if Producer hires one or more third parties to assist in the production of the Audiobook.
  3. Rights Holder Approval
    1. Approvals. Rights Holder will have the following three rights of approval in connection with Producer's production of the Audiobook (and no other rights of approval): (i) the right to approve the narrator chosen by the Producer, (ii) the right to approve the first 15 minutes of the Audiobook, and (iii) the right to approve the completed Audiobook.
    2. Procedures
      1. Rights Holder agrees to work with Producer in good faith in connection with Rights Holder's rights of approval, to make constructive and specific suggestions to help Producer gain approval, and to not unreasonably deny or delay approval. Rights Holder will provide approval through the approval submission feature available on ACX and agrees that such approval is final once provided. Rights Holder will endeavor to provide approvals or request revisions of the first 15 minutes within 4 business days of Producer's submission and of the completed Audiobook within 10 business days of Producer's submission (in each case, the "Rights Holder Review Period").
      2. Producer agrees to work with Rights Holder in good faith to make revisions reflecting Rights Holder's suggestions, to the extent practicable. Producer will make up to two set of revisions to the first 15 minutes of the Audiobook, if requested by Rights Holder, and will make up to two sets of revisions to the completed Audiobook, if requested by Rights Holder. In each case, Producer will endeavor to make revisions within 10 business days (the "Producer Revision Period").
    3. Deemed Approval on Completed Audiobook. If Rights Holder does not respond to a request for approval of the completed Audiobook (or a new version of the completed Audiobook revised in response to Rights Holder's suggested changes) within 10 business days, Rights Holder will be deemed to have given approval, unless Rights Holder provides Producer written notice through the ACX messaging system (and copying info@acx.com) prior to the expiration of the 10 day business period requesting up to 10 additional business days, in which case the 10 business day approval period will be extended by the number of business days equal to the extension requested by Rights Holder. Rights Holder may request up to 10 additional business days after this first extension. Producer may grant or deny any such request in Producer's sole discretion. The Completion Date for the Audiobook will be extended by the number of additional business days granted to Rights Holder for submission of Rights Holder's approval in accordance with the foregoing extension request process.
    4. Resubmissions and Resolution or Termination in the Event of Impasse
      1. First 15 minutes. If Rights Holder rejects the first 15 minutes of the Audiobook submitted by Producer, Rights Holder must provide specific and detailed feedback and requests for changes and corrections to Producer. Producer will make revisions based on Rights Holder's feedback. In the event (1) Rights Holder does not approve the first 15 minutes nor provide any feedback within the Rights Holder Review Period, (2) Producer fails to submit a revision to Rights Holder within the Producer Revision Period, or (3) if Producer submits a revision to Rights Holder within the Producer Revision Period and Rights Holder rejects the revision within the Rights Holder Review Period, then either party may terminate this Agreement by providing written notice of termination to the other through the ACX messaging system (and sending a copy of the message to info@acx.com) no later than 10 business days following the end of the Producer Revision Period or the date on which Rights Holder rejected the revision, as applicable. No fee or compensation of any kind will be payable by either party to the other in connection with any termination of this Agreement pursuant to the foregoing sentence.
      2. Completed Audiobook
        1. If Rights Holder rejects the completed Audiobook submitted by Producer, Rights Holder must provide specific and detailed feedback and requests for changes and corrections to the Producer. Producer will make revisions based on Rights Holder's feedback and resubmit a revised version. If the revised version including the revisions submitted by Producer is disapproved by Rights Holder then Rights Holder may terminate this Agreement by payment of a cancellation fee to Producer in accordance with Section 8(b).
        2. In the event Producer fails to submit by the Completion Date the completed Audiobook that is approved by Rights Holder (or deemed approved by Rights Holder as provided in Section 3(c)( and this Section 3(d)(ii)(B)), then each party will be entitled to terminate this Agreement by providing written notice of termination to the other. No fee or compensation of any kind will be payable by either party to the other in connection with any termination of this Agreement pursuant to the foregoing sentence.
  4. Exclusive Right of Producer to Produce Audiobook. Rights Holder will neither produce or sell, nor grant any third party the right to produce or sell, an audio version of the Book in the Language(s) for distribution in the Territory during the exclusive production period granted to Producer set forth in the Deal Confirmation Page. Producer understands that if Rights Holder or Producer terminates this Agreement as permitted in this Agreement, Rights Holder will be free to engage another producer to produce the Audiobook and will have no further obligation to Producer with respect to the Audiobook.
  5. Distribution and Payment Terms. There are three distribution and payment term options that a Rights Holder can choose between that affect Audible's distribution rights and the basis on which Rights Holder and Producer will be entitled to payment. All payments by Audible will be inclusive of any applicable VAT or equivalent applicable sales tax. Audible may deduct or withhold any taxes that Audible may be legally obligated to deduct or withhold from any amounts payable to Rights Holders and Producers, and payments as reduced by such deductions or withholdings will constitute full payment and settlement to Rights Holders and Producers. Rights Holders and Producers will provide Audible with any forms, documents, or certifications as may be required for Audible to satisfy any information reporting or withholding tax obligations with respect to any payments.

    #1 IF THE PRODUCTION OFFER PAGE AND DEAL CONFIRMATION PAGE STATE THAT RIGHTS HOLDER GRANTS AUDIBLE EXCLUSIVE DISTRIBUTION RIGHTS AND PROVIDE FOR A ROYALTY SHARE PAYMENT TO PRODUCER, THE FOLLOWING PAYMENT TERMS APPLY:
    Rights Holder will pay Producer the royalty amount set forth in the Deal Confirmation Page for all sales of the Audiobook in the Territory in accordance with Audible's standard ACX Royalty Payment Terms and Procedures for Royalty Share Deals in effect as of the date of the Deal Confirmation Page as full consideration for all services performed by Producer under this Agreement, provided Producer is not in breach of this Agreement. Producer is responsible for all of Producer's costs and expenses in producing the Audiobook. Rights Holder and Producer acknowledge that Audible will pay, on Rights Holder's behalf, all royalty payments owed to Producer under this section on sales made by Audible or Audible's sub-distributors.
    or
    #2 IF THE PRODUCTION OFFER PAGE AND DEAL CONFIRMATION PAGE STATE THAT RIGHTS HOLDER GRANTS AUDIBLE EXCLUSIVE DISTRIBUTION RIGHTS AND PROVIDE FOR THE PAYMENT OF A ONE-TIME FEE TO PRODUCER, THE FOLLOWING TERMS APPLY:
    Rights Holder will pay Producer the sum set forth in the Deal Confirmation Page within 30 days of Producer's completion of the Audiobook and Rights Holder's approval (or deemed approval) of the Audiobook as full consideration for all services performed by Producer under this Agreement, provided Producer is not in breach of this Agreement. Producer is responsible for all of Producer's costs and expenses in producing the Audiobook.
    or
    #3 IF THE PRODUCTION OFFER PAGE AND DEAL CONFIRMATION PAGE STATE THAT RIGHTS HOLDER GRANTS AUDIBLE NON-EXCLUSIVE DISTRIBUTION RIGHTS AND THE PAYMENT OF A ONE-TIME FEE TO PRODUCER, THE FOLLOWING TERMS APPLY:
    Rights Holder will pay Producer the sum set forth in the Deal Confirmation Page within 30 days of Producer's completion of the Audiobook and Rights Holder's approval (or deemed approval) of the Audiobook as full consideration for all services performed by Producer hereunder, provided Producer is not in breach of this Agreement,. Producer is responsible for all of Producer's costs and expenses in producing the Audiobook.
  6. Payments to Producers. Rights Holder understands that if Producer personally performs narration services and is a member of a talent union or guild, the union or guild may require a portion of the Producer's earnings under this Agreement be paid to the union or guild's pension, health and welfare account. Audible may, from time to time, post Health and Retirement Contribution Conditions for SAG-AFTRA Producers on ACX that govern payments by rights holders to such producers under audiobook production agreements formed on ACX ("Contribution Conditions"). These Contribution Conditions may include, among other things, payment through an independent paymaster or payment of pension, health and welfare contributions under a union or guild agreement. Rights Holder and Producer agree to abide by any Contribution Conditions posted on ACX as of the date set forth in the Deal Confirmation Page.
  7. Withholding and Offset of Royalty Payments. If Rights Holder and Producer agree to a royalty share payment model for Producer's performance of services, Producer understands and agrees that Producer will not be entitled to payment of royalties if Producer is in breach of any of its obligations to Audible or to another ACX participant under any ACX agreement applicable to the Audiobook. In that case, royalties due to Producer will continue to accrue, but royalty payments may be withheld until Producer cures the applicable breach. Further, any indemnity or other payment that Producer owes Rights Holder or Audible may be offset against royalty payments that Rights Holder owes Producer.
  8. Additional Rights of Termination
    1. Termination with no Termination Fee. In addition to the rights of the parties to terminate this Agreement without payment of fees pursuant to Sections 3(d)(i), 3(d)(ii)(B), and 12, the parties may terminate this Agreement with no fee or compensation of any kind owing to each other as follows: (i) Producer may terminate this Agreement if the Rights Holder does not provide to Producer the recordable manuscript for the Audiobook within 3 business days after acceptance of the offer; (ii) Producer may terminate this Agreement if the word count Rights Holder provides for the Audiobook underestimates or overestimates the actual length of the Book by 20% or more, provided that Producer provides written notice of termination to Rights Holder through the ACX messaging system (and copying info@acx.com) no later than the date Producer is obligated to deliver the first 15 minutes of the Audiobook to Rights Holder for Rights Holder's approval or the date that is 15 days following the date of the Deal Confirmation Page, whichever first occurs; and (iii) Rights Holder may terminate this Agreement if Producer fails to deliver the first 15 minutes of the Audiobook or the final version of the Audiobook for Rights Holder's approval by the applicable date set forth in the Deal Confirmation Page and fails to do so within 48 hours of Rights Holder's written request to Producer to do so through the ACX messaging system (and copying info@acx.com).
    2. Termination with Termination Fee. In addition to the rights of the parties to terminate this Agreement without payment of fees pursuant to Sections 3(d)(i), 3(d)(ii)(B), 8(a), and 12, Rights Holder may terminate this Agreement by providing a written notice of termination to Producer through the ACX messaging system (and copying info@acx.com) given at any time prior to Producer's completion of the initial raw recording of the entire Audiobook, subject to payment of the following termination fees:
      1. If Rights Holder and Producer have agreed to a one-time production fee arrangement, Rights Holder must pay Producer a cancellation fee equal to 50% of the estimated production fee as set forth in the Deal Confirmation Page.
      2. If Rights Holder and Producer have agreed to a royalty share arrangement, Rights Holder must pay Producer a cancellation fee equal to $100 base plus $100 per finished hour times the projected number of finished hours (in 10 minute increments) in the Deal Confirmation Page; up to a maximum of $2,500.
        Rights Holder may not cancel Producer's engagement under this Section 8(b) after Producer has completed the initial raw recording of the entire Audiobook. "Initial raw recording" means the initial audio recording of the entire Book, before the commencement of the editing and/or mastering process.
      3. Termination Fee for Royalty Share Deals with No Distribution. If Rights Holder and Producer have agreed to a royalty share arrangement and the Audiobook is not released for sale within 9 months after the date Producer uploads the completed Audiobook to ACX's title production page for any reason (other than Audible's rejection due to quality issues or failure to comply with the Production Standard Terms), Producer agrees to accept a cancellation fee, payable by ACX, equal to $100 times the actual number of finished hours (rounded in 10 minute increments) in the Deal Confirmation Page; up to a maximum of $2,500.
  9. Delivery of Completed Audiobook. Producer will upload the completed Audiobook and one excerpt from the Audiobook to ACX's title production page in accordance with the requirements of ACX. If Rights Holder approves the completed Audiobook and excerpt, Rights Holder will approve the Audiobook and excerpt using the approval submission feature on ACX.
  10. Ownership. Subject to the restriction on audiobook production rights above and the distribution rights granted by Rights Holder to Audible, Rights Holder will retain all right, title, and interest in and to the Book and the Audiobook, including the copyright in the Book and the sound recording copyright in the Audiobook. Producer agrees that the Audiobook is a "work made for hire" to the full extent permitted by law, with all copyrights in the Audiobook owned by Rights Holder. To the extent that the Audiobook does not qualify as a work made for hire under applicable law, Producer assigns to Rights Holder all right, title and interest Producer may have in and to the Audiobook, including, but not limited to, all copyright or rights of authorship in the Audiobook. Producer will ensure that its agreements with any third parties Producer engages to assist in the production of the Audiobook establish Rights Holder's sole ownership in the Audiobook. Producer will use the form agreements referenced in Section 2 above. At Rights Holder's request, Producer will provide Rights Holder with copies of the agreements.
  11. Right of Publicity Grant. Producer agrees that Rights Holder and Audible will have the right to use Producer's name, likeness, and biographical information in marketing for the Audiobook in any media without time or use restrictions. Producer will, promptly on request, provide Rights Holder and Audible an image and brief written biography suitable for use by Rights Holder and Audible in the marketing of the Audiobook. If the Producer is not narrating the Audiobook, Producer also agrees to obtain for Audible and Rights Holder the right to use the narrator's name, likeness, and biographical information in marketing for the Audiobook in any media without time or use restrictions.
  12. Failure to Perform. If Producer is prevented from performing by reason of Producer's accident or mental or physical disability or incapacity ("incapacity"), or if Producer refuses or neglects to perform Producer's services ("default"), then Rights Holder may suspend Producer's services and compensation from the date of such incapacity or default. If Producer is prevented or interrupted in the production of the Audiobook by reason of any event beyond Producer's reasonable control, including governmental law, acts of God, strike, armed conflict, death, or any similar cause ("force majeure event"), then Rights Holder may suspend Producer's services and compensation for the duration of such force majeure event. If Producer's failure to continue to produce the Audiobook due to incapacity, default or a force majeure event continues for a period of 20 consecutive business days, Rights Holder may provide Producer written notice of termination through the ACX messaging system (and sending a copy to info@acx.com). This Agreement will automatically terminate 10 business days after Producer's receipt of this written notice from Rights Holder if Producer fails to cure Producer's inability to perform within 10 business days. In the event of any such termination, Producer's rights to produce the Audiobook will terminate, the audiobook production rights in the Book for the Language and Territory will revert to Rights Holder, and Rights Holder will owe no payment to Producer.
  13. Representations and Warranties. Producer represents and warrants, for the benefit of Rights Holder and Audible, that: (a) Producer is free to enter into the Agreement in accordance with the Deal Confirmation Page and these Terms and to perform as required by the Agreement, (b) Producer has made no agreements or commitments that prevent or interfere with the performance of Producer's obligations under the Deal Confirmation Page and these Terms, and (c) the sound recording in the Audiobook will be original and will not infringe upon or violate the rights of privacy, publicity, copyright or any other statutory or common law rights of any kind of any third party. Rights Holder warrants, for the benefit of Producer and Audible, that Rights Holder has all rights required to make the Book available for production and distribution as an audiobook via ACX.
  14. Independent Contractor. Producer will provide services to Rights Holder on an independent contractor basis. Rights Holders and Producers are solely responsible for their own compliance with all applicable tax laws, including but not limited to the Canadian Excise Tax Act, and the payment of any applicable taxes. Producer will have no authority to bind Rights Holder in any way or to make any commitments to anyone on behalf of Rights Holder without Rights Holder's prior written consent.
  15. Assignment. Rights Holder may assign its rights hereunder in whole or in part to any person, firm or corporation, and such rights may be assigned by any assignee thereof, but no such assignment will relieve Rights Holder of any of its obligations under this Agreement. Producer's services are of a unique, extraordinary, and personal character which gives them a peculiar value, and therefore may not be assigned by Producer. Any purported assignment by Producer will be null and void.
  16. General. The Agreement, together with these Terms, the Deal Confirmation Page and relevant provisions in the Account Holder Agreement, constitute the entire understanding between Rights Holder and Producer with respect to the subject matter hereof, supersedes all other agreements and understandings between the parties, and may not be modified or amended, except by a writing signed by both parties, provided that, to be valid, any writing that amends this Agreement must otherwise comply with the terms and conditions of ACX. The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision of these Terms. A waiver by either party of any term or condition of these Terms in any instance will not be deemed a later waiver of such term or condition, or of any later breach thereof, or as a waiver of any other term or condition in these Terms. these Terms, and all rights and duties of the parties, will be governed by and enforced in accordance with the laws of the State of New York, excluding any conflict of laws provisions. Except as may otherwise be specifically provided for in the ACX Dispute Resolution Procedures set forth in the ACX Account Holder Agreement, all disputes with respect to matters under these Terms or with respect to this Agreement will be subject to the exclusive venue and jurisdiction of the courts sitting in the County of New York, New York. All notices that either party is required or desires to serve on the other will be provided through the ACX messaging system or to an address that a party has provided to the other party for provision of notices through the ACX messaging system. Notice will be deemed given 24 hours after notice is provided through the ACX messaging system or through a writing sent to a party's physical address via registered mail, return receipt requested. The party sending notice will also provide Audible a copy of such notice by info@acx.com.
Legal Contracts

Audiobook License and Distribution Agreement

Last revised 06/01/2017

Version 2.6

BY CLICKING "AGREE & CONTINUE" YOU, ON BEHALF OF YOURSELF IN AN INDIVIDUAL CAPACITY OR THE ENTITY THAT YOU REPRESENT, AGREE TO BE BOUND BY ALL TERMS OF THIS AUDIOBOOK LICENSE AND DISTRIBUTION AGREEMENT ("AGREEMENT"), INCLUDING THE AUDIOBOOK CREATION EXCHANGE ACCOUNT HOLDERS AGREEMENT THAT IS INCORPORATED BY REFERENCE HERETO. THE EFFECTIVE DATE ("EFFECTIVE DATE") OF THIS AGREEMENT WILL BE THE DATE YOU CLICK "AGREE & CONTINUE". PLEASE REVIEW THIS ENTIRE AGREEMENT CAREFULLY BEFORE CLICKING "AGREE & CONTINUE".
This Agreement sets forth the terms under which you grant Audible, Inc. ("Audible", "we" or "us"), a United States corporation, rights to distribute the audio recording of the book(s) you have identified on ACX for the grant of distribution rights (any such audio recording as submitted by you or as modified pursuant Section 3(a) below, an "Audiobook"). Among other things, you grant rights to distribute the Audiobook in the territory or territories ("Territory") you indicated on the ACX website (ACX.com) or a successor site ("ACX"). Our distribution of the Audiobook is either exclusive or non-exclusive, as indicated by you on ACX.
  1. Rights. You represent and warrant that:
    1. You own or control distribution rights to the Audiobook and have the full right, power and authority to enter into and fully perform this Agreement;
    2. You are an authorized account holder of a current user account on ACX;
    3. You have obtained all rights necessary for Audible to exercise the rights granted under this Agreement;
    4. The sale and distribution of the Audiobook as permitted under this Agreement will not violate any applicable law or infringe upon or otherwise violate the intellectual property, proprietary or other rights of any person or entity, including contractual rights, copyrights, trademarks, common law rights, rights of publicity or privacy or moral rights;
    5. The Audiobook does not contain any defamatory or libelous material as defined by the laws applicable in the Territory;
    6. You will be solely responsible for, and will pay, any third parties any royalties that they are owed with respect to the exercise of the rights granted under this Agreement.
  2. Distribution By Audible.
    1. IF YOU INDICATE ON ACX THAT YOU ARE GRANTING AUDIBLE EXCLUSIVE DISTRIBUTION RIGHTS IN THE AUDIOBOOK, THE FOLLOWING TERMS APPLY:
      You grant Audible the exclusive license to use, reproduce, display, market, sell and distribute the Audiobook throughout the Territory in all formats now known or hereafter invented from the date you accept this Agreement until the date that is 7 years from such date (such 7 year period, the "Initial Distribution Period"). As full consideration for the exclusive license granted by you, Audible will pay you royalties on sales of the Audiobook based as set forth in Exhibit A. After the Initial Distribution Period, this Agreement will renew automatically for additional 1 year terms (each, a "Renewal Distribution Period") unless either party provides notice of termination to the other party at least 60 days prior to the end of the Initial Distribution Period or the then-current Renewal Distribution Period in accordance with the notice provisions provided below. During the Distribution Period (as defined below) you will not, and will not permit any third party to, directly or indirectly distribute, sell, or offer for sale the Audiobook, or any portion thereof (except the Audible Excerpt as permitted by Section 3(c) below), in the language(s) you provided Audible for distribution in the Territory in any audio format (whether download, streaming, physical compact disc or otherwise).
    1. IF YOU ELECT TO GRANT AUDIBLE NON-EXCLUSIVE DISTRIBUTION RIGHTS IN THE AUDIOBOOK, THE FOLLOWING TERM APPLIES:
      You grant Audible the non-exclusive license to use, reproduce, display, market, sell and distribute the Audiobook throughout the Territory in all formats now known or hereafter invented from the date you accept this Agreement until the date that is 7 years from such date (such 7 year period, the "Initial Distribution Period"). As full consideration for the non-exclusive license granted by you, Audible will pay you royalties on its sales of the Audiobook based as set forth in Exhibit A. After the Initial Distribution Period, this Agreement will renew automatically for additional 1 year terms (each, a "Renewal Distribution Period") unless either party provides notice of termination to the other party at least 60 days prior to the end of the Initial Distribution Period or the then-current Renewal Distribution Period in accordance with the notice provisions provided below.
  3. The Initial Distribution Period and each Renewal Distribution Period (if any), in either of the above cases, is the "Distribution Period."
  4. Other Rights Granted to Audible
    1. Right to Edit. Audible may modify, reformat, encode, adapt and edit the Audiobook to make the Audiobook compatible with the Audible service, including but not limited to by (a) adding Audible's standard intro and outro, and (b) removing flaws or audio elements that are, in Audible's judgment, incompatible or inconsistent with the Audible service (e.g., playback instructions, microphone bumps, distortion, ambient sound, etc.).
    2. Additional Territories. You may expand the Territory at any time by adding additional territories (each, an "Additional Territory"). If you want to grant Audible distribution rights in an Additional Territory, you may notify Audible by emailing Audible at info@acx.com or using such other means as Audible may provide for provision of notice of Additional Territories. By notifying Audible that you wish to include Additional Territories you make all representations and warranties in Section 1 of this Agreement with respect to the Additional Territories. The "Territory" will be deemed to include each Additional Territory as of the date of your notice to Audible and Audible's distribution rights under this Agreement will automatically extend to include the Additional Territory.
    3. Excerpts. You will provide Audible a verbatim excerpt of the Audiobook not exceeding 5 minutes in length or 10% of the total duration of the finished Audiobook, whichever is longer. During the Distribution Period, Audible will have the right to use, reproduce, display and distribute such excerpt or any other excerpts from the Audiobook in any media now known or hereafter invented for purposes of advertising and promoting the Audiobook and the Audible service. Any such excerpts will not exceed 5 minutes in length or 10% of the total duration of the Audiobook, whichever is longer, and will be a verbatim excerpt from the Audiobook (each, an "Audible Excerpt"). In the event Audible's distribution of the Audiobook is exclusive, Audible grants you a non-exclusive, non-transferable, non-sublicensable license to use an Audible Excerpt solely on a website for purposes of promoting the Audiobook. However, you may not email an Audible Excerpt to third parties or otherwise provide an Audible Excerpt to third parties in any format without the prior written consent of Audible.
    4. Cover Art. During the Distribution Period, Audible will have the right to use and distribute any cover art, graphics, images, or other artwork related to the Audiobook that you provide to Audible ("Artwork") and the title of the Audiobook in any media now known or hereafter invented for purposes of advertising and promoting the Audiobook and/or the Audible service. You will provide Artwork to Audible via the ACX online system or as otherwise instructed by Audible. The Artwork must be the same cover art, graphics, images, or other artwork used for the print version of the book, unless you don't have the right to make this artwork available for use for the Audiobook, in which case you will select generic artwork using the ACX system. Audible may modify and/or reformat the Artwork.
    5. Right of Publicity Grant. During the Distribution Period, if you are the author or editor of the Audiobook, you grant Audible the right to use your name, approved likeness, and approved biographical information in the Territory in any media now known or hereafter invented for purposes of advertising and promoting the Audiobook and the Audible service. You will, promptly, on request, provide Audible an image and brief written biography suitable for use by Audible in the marketing of the Audiobook. Any image or biographical information you provide will be deemed approved by you upon submission to Audible. If you are not the author or editor of the Audiobook, you agree to obtain for Audible the right to use, during the Distribution Period, the author's (or editor's) name, likeness, and biographical information in the Territory in any media now known or hereafter invented for purposes of advertising and promoting the Audiobook and the Audible service.
    6. Exercise of Rights and Sublicense. Audible may exercise any of the rights granted to it under this Agreement or discharge any of its obligations under this Agreement through one or more of its Affiliates. Audible may sublicense any of the rights granted to it under this Agreement to any of its Affiliates or to any third party and may permit any sublicensee to sublicense the rights Audible grants to it. Audible will remain responsible for each sublicensee's compliance with this Agreement. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with Audible or you, as appropriate.
  5. Geo-Filtering. Audible will employ geographic filtering technology or other territory-to-customer matching system, selected in its sole discretion,designed to limit the distribution of the Audiobook to the Territory. You acknowledge that any such technology will not be able to fully prevent the delivery of the Audiobook outside the Territory and agree that Audible will be deemed to have distributed the Audiobook within the Territory as long as Audible has used such technology in connection with such distribution.
  6. Delivery and Audible Review of Audiobook
    1. Delivery. You will deliver the completed Audiobook via the ACX online system or as otherwise instructed by Audible.
    2. Audible Review of Audiobook. Upon receipt, Audible may review the completed Audiobook for consistency with industry standard high-quality audiobooks and compliance with the ACX Audio Submission Requirements. Audible will have the right to accept or reject the Audiobook in its discretion or provide you instructions on how to meet Audible's standards for completed audiobooks. If Audible rejects the Audiobook, this Agreement will terminate.
  7. Withholding and Offset of Royalty Payments. If you are in breach of any of your obligations to Audible ("Breach") or if a third party has asserted that you did not have all rights required to grant the rights that you grant in this Agreement ("Third Party Claim"),royalties rightfully due to you on the Audiobook will continue to accrue,but Audible is entitled to withhold the royalty payments until you cure the Breach or fully resolve the Third Party Claim. You will notify Audible of any Breach or Third Party Claim of which you are aware within 5 days after you learns of the Breach or Third Party Claim. Further, Audible is entitled to offset amounts that you owe Audible related to an Audiobook against royalty payments Audible owes you on the applicable Audiobook. If the Audiobook was produced using the ACX royalty share option and Audible stops distribution of the Audiobook due to a Breach or Third Party Claim,you agree that if you do not pay the Producer (as defined in the Book Posting Agreement) the termination fee set forth in Section 11 of the Book Posting Agreement, Audible is entitled to offset the termination fee that you owe Producer related to the Audiobook against royalty payments Audible owes you on the applicable Audiobook.
  8. Termination. In addition to the termination rights described in Section 2 above,Audible may terminate this Agreement immediately if you have breached any representations, warranties or covenants in this Agreement or upon 30 days written notice to you for any reason. In the event of termination or expiration of this Agreement: (a) all rights granted under this Agreement will revert to you; and (b) Audible will, within 30 days after the end of the calendar quarter in which the termination or expiration occurred,issue a final accounting report together with payment for any amounts that may be due to you under this Agreement in connection with the sale of the Audiobook during the Distribution Period. Notwithstanding anything else set forth herein, you acknowledge that after the termination or expiration of this Agreement for any reason, Audible will retain all the rights necessary for customer support and maintenance, including continuing access and ability to download copies of the Audiobook that customers purchased during the Distribution Period. Upon termination or expiration of this Agreement, all rights and obligations of the Parties under this Agreement will be extinguished, except that Sections 1, 4, 9, 10, 11, 1314, 15 and 16 shall survive termination.
  9. Audible Controls its Distribution Decisions. All Audiobooks distributed by Audible are subject to Amazon's Offensive Content Policy. Audible will have sole discretion over all decisions related to its distribution of the Audiobook, regardless of whether the distribution rights you grant to Audible in this Agreement are exclusive or non-exclusive. You understand that Audible is under no obligation to sell the Audiobook or,if Audible commences sale of the Audiobook, to continue to sell the Audiobook and that Audible makes no assurance to you that Audible will sell any minimum number of units of an Audiobook. Notwithstanding the foregoing,if you grant Audible exclusive distribution rights to the Audiobook and if, within 6 months after the finished Audiobook is delivered to Audible,Audible has not started selling the Audiobook, you may send Audible notice in accordance with the notice provisions provided below requesting that Audible commence sale of the Audiobook. If Audible does not commence selling the Audiobook within 3 months after Audible confirms receipt of your notice, this Agreement may be terminated upon 30 days' notice provided by you in accordance with the notice provisions provided below and all rights in the Audiobook granted to Audible in this Agreement will revert to you.
  10. Ownership. As between you and Audible, except for the license you grant to Audible in this Agreement, you retain all right, title, and interest in and to the Audiobook, including the copyright in the Audiobook. All rights in the Audiobook not granted in this Agreement to Audible are expressly reserved by you.
  11. Indemnification. You will defend Audible, its Affiliates, and its sub-distributors , and their respective officers, directors, employees, and agents (the"Audible Parties") from any losses, costs, or liabilities incurred by any of them (a) as a result of a breach by you of any of your representations or warranties in this Agreement, (b) as a result of your failure to meet any of your other obligations set forth in this Agreement or with respect to ACX generally or (c) as a result of your negligence,strict liability or intentional misconduct (individually, a"Claim", and collectively, the "Claims"). You will indemnify each Audible Party against any liability (including reasonable attorneys' fees) incurred by that Audible Party relating to any Claim,except to the proportional extent the liability is caused by the negligence or intentional misconduct of that Audible Party as determined by a final, non-appealable order of a court having jurisdiction. You will not consent to the entry of a judgment or settle without the Audible Parties' prior written consent, which may not be unreasonably withheld. You will use counsel reasonably satisfactory to the Audible Parties, and the Audible Parties will cooperate in the defense. If any Audible Party reasonably determines that any Claim might have an adverse effect, that Audible party may take control of the defense at its expense (without limiting your indemnification obligations). Your obligations under this Section 10 are independent of your other obligations under this Agreement.
  12. LIMITATION OF LIABILITY. AUDIBLE IS NOT LIABLE TO YOU UNDER ANY CIRCUMSTANCEFOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDINGLOST PROFITS OR OPPORTUNITIES. NOTHING IN THIS AGREEMENT SHALLEXCLUDE OR LIMIT ANY PARTY'S LIABILITY FOR ANY LIABILITY THAT CANNOT BELIMITED OR EXCLUDED UNDER APPLICABLE LAW.
  13. Assignment. You may not assign any of your rights and obligations under this Agreement without Audible's prior written consent. Audible may assign any of its rights and obligations under this Agreement. Subject to the foregoing,this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of this Section 13 will be null and void.
  14. Confidentiality. You will (a) protect Audible's information that is identified as confidential or that reasonably should be considered confidential; (b) use such information only to fulfill your obligations under this Agreement;and (c) return such information to Audible promptly when this Agreement terminates.
  15. Entire Agreement; Enforceability. This Agreement and the documents referred to herein constitutes the entire agreement between you and us regarding the matters covered in it and supersedes any and all prior or contemporaneous understanding, agreement, or communication between you and us, whether written or oral, regarding the matters covered in it and may not be modified or amended except by a writing agreed to by you and us. You acknowledge that in executing this Agreement you are not relying on any express or implied representation, warranty, draft agreement, undertaking, promise collateral contract or other assurance or arrangement of any kind not contained herein. If any provision of this Agreement is found to be invalid, void, or for any reason unenforceable,that provision will be deemed severable and will not affect the validity and enforceability of any other provision.
  16. Notices. Any notice provided for in this Agreement will be in writing addressed to the other party. Your notice address will be the physical and electronic addresses you have indicated on your ACX account. Audible's address will be 1 Washington Park, 16th Floor Newark, NJ 07102, Attn: Legal Department,Fax: 973.820.0505, or to such other address as Audible may designate by notice. All notices will be given in writing via messenger, overnight courier,confirmed facsimile transmission, email, or by first class mail,certified, return receipt requested, provided that from the email notice sent by you must be sent from the address you have on file with ACX. All notices will be deemed given on the date of receipt.
  17. Governing Law and Disputes This Agreement is governed by the laws of the State of New York. All disputes with respect to this Agreement will be subject to the exclusive jurisdiction of courts sitting in the County of New York, New York in accordance with the rules and procedures of such courts.

Exhibit A

Royalty Terms

A. IF YOU GRANT AUDIBLE EXCLUSIVE DISTRIBUTION RIGHTS IN THE AUDIOBOOK, THE FOLLOWING ROYALTY TERMS APPLY:

Audiobook Royalty Payment Terms and Procedures

For Audible Exclusive Distribution Rights

These Audiobook Royalty Payment Terms and Procedures for Audible Exclusive Distribution Rights ("Royalty Terms") set forth the terms by which Audible will calculate and pay royalty payments owed to you in connection with Audible's distribution of the Audiobook ("Royalties"). These Royalty Terms form a part of your Audiobook License and Distribution Agreement with Audible ("Agreement"). Capitalized terms used in these Royalty Terms but not defined have the meaning assigned to them in the Agreement.
Audible will pay Royalties to you only on Audible Net Sales Receipts (as defined below) it receives from sales of the Audiobook. 
Royalty Calculation. Audible will pay you 40% of all A La Carte Net Sales Receipts and 40% of all Member Net Sales Receipts from sales of the Audiobook. No Royalty will be paid on the transmission or distribution of downloads or other copies of the Audiobook distributed for free for purposes of review, sample, advertising, publicity or promotion. For purposes of this Agreement, the Parties agree that in all cases, 10% of copies sold during the applicable accounting period will be deemed to be commercially reasonable.
  • "A La Carte Net Sales Receipts"means the monetary amount received by Audible from a la carte sales of each Unit, less any cash incentives, promotional discounts, sales or use taxes, excise taxes,value-added taxes, duties, and returns.
  • "Membership Net Sales Receipts" means, for each Unit, the monetary amount obtained by multiplying the AudibleListener Allocation Factor (as defined below) by Audible's a la carte price for the Unit at the time the AudibleListener Allocation Factor is calculated.
  • The "AudibleListener Allocation Factor" means the total of all membership sales receipts derived from sales of all content sold by Audible in the applicable accounting period, less any cash incentives, promotional discounts, sales or use taxes, excise taxes, value-added taxes, duties and returns, divided by the total a la carte value (as determined by Audible's applicable a la carte price for the Audiobook at the time the AudibleListener Allocation Factor is calculated) of the membership sales of all content sold by Audible in the applicable accounting period.
Royalty Statements and Payments. For Rights Holders residing in the United States, Audible will provide you a statement of Royalties, together with a check or direct deposit in the amount of any Royalty due, on a calendar monthly net 30 day basis, commencing with the first full month after the Audiobook is first offered for sale by Audible. For Rights Holders residing in the United Kingdom, Canada, or the Republic of Ireland, Audible will provide you a statement of Royalties together with a direct deposit in the amount of any Royalty due, on a calendar monthly net 30 day basis, commencing with the first full month after the Audiobook is first offered for sale by Audible; provided, however, that payments to Rights Holders residing in Canada or the Republic of Ireland with respect to Audiobooks first offered for sale by Audible in June of 2017 will commence not later August 31, 2017. All payments made by Audible will be inclusive of any applicable VAT or equivalent applicable sales tax. Rights Holders and Producers are solely responsible for their own compliance with all applicable tax laws, including but not limited to the Canadian Excise Tax Act, and the payment of any applicable taxes. Audible may deduct or withhold any taxes that Audible may be legally obligated to deduct or withhold from any amounts payable to you, and payments as reduced by such deductions or withholdings will constitute full payment and settlement to you. You will provide Audible with any forms, documents, or certifications as may be required for Audible to satisfy any information reporting or withholding tax obligations with respect to any payments. If the Royalties owed to you for any accounting period are less than $50, Audible will have the right to withhold making a payment and carry such payment forward to the next reporting period. Any ACX royalty statements Audible provides to you will be considered final and incontestable 3 months from the date the statements are provided by Audible if you do not object to the statements within that period of time.

B. IF YOU GRANT AUDIBLE NON-EXCLUSIVE DISTRIBUTION RIGHTS IN THE AUDIOBOOK, THE FOLLOWING ROYALTY TERMS APPLY:

Audiobook Royalty Payment Terms and Procedures

For Audible Non-Exclusive Distribution Rights

These Audiobook Royalty Payment Terms and Procedures for Audible Non-Exclusive Distribution Rights ("Royalty Terms") set forth the terms by which Audible will calculate and pay royalty payments owed to you in connection with Audible's distribution of the Audiobook ("Royalties"). These Royalty Terms form a part of your Audiobook License and Distribution Agreement with Audible ("Agreement"). Capitalized terms used in these Royalty Terms but not defined have the meaning assigned to them in the Agreement.
Audible will pay Royalties to you only on Audible Net Sales Receipts (as defined below) it receives from sales of the Audiobook.
Royalty Calculation. Audible will pay you 25% of all A La Carte Net Sales Receipts and 25% of all Member Net Sales Receipts from sales of the Audiobook. No Royalty will be paid on the transmission or distribution of downloads or other copies of the Audiobook distributed for free for purposes of review, sample, advertising, publicity or promotion. For purposes of this Agreement, the Parties agree that in all cases, 10% of copies sold during the applicable accounting period will be deemed to be commercially reasonable.
  • "A La Carte Net Sales Receipts" means the monetary amount received by Audible from a la carte sales of each Unit, less any cash incentives, promotional discounts, sales or use taxes, excise taxes,value-added taxes, duties, and returns.
  • "Membership Net Sales Receipts" means, for each Unit, the monetary amount obtained by multiplying the AudibleListener Allocation Factor (as defined below) by Audible's a la carte price for the Unit at the time the AudibleListener Allocation Factor is calculated.
  • The "AudibleListener Allocation Factor" means the total of all membership sales receipts derived from sales of all content sold by Audible in the applicable accounting period, less any cash incentives, promotional discounts, sales or use taxes, excise taxes, value-added taxes, duties and returns, divided by the total a la carte value (as determined by Audible's applicable a la carte price for the Audiobook at the time the AudibleListener Allocation Factor is calculated) of the membership sales of all content sold by Audible in the applicable accounting period.
Royalty Statements and Payments. For Rights Holders residing in the United States, Audible will provide you with a check or direct deposit in the amount of any Royalty due, on a calendar monthly net 30 day basis, commencing with the first full month after the Audiobook is first offered for sale by Audible. For Rights Holders residing in the United Kingdom, Canada, or the Republic of Ireland, Audible will provide you a statement of Royalties together with a direct deposit in the amount of any Royalty due, on a calendar monthly net 30 day basis, commencing with the first full month after the Audiobook is first offered for sale by Audible provided, however, that . payments to Rights Holders residing in Canada or the Republic of Ireland with respect to Audiobooks first offered for sale by Audible in June of 2017 will commence not later August 31, 2017. All payments made by Audible will be inclusive of any applicable VAT or equivalent applicable sales tax. Audible may deduct or withhold any taxes that Audible may be legally obligated to deduct or withhold from any amounts payable to you, and payments as reduced by such deductions or withholdings will constitute full payment and settlement to you. You will provide Audible with any forms, documents, or certifications as may be required for Audible to satisfy any information reporting or withholding tax obligations with respect to any payments. Rights Holders and Producers are solely responsible for their own compliance with all applicable tax laws, including but not limited to the Canadian Excise Tax Act, and the payment of any applicable taxes. If the Royalties owed to you for any accounting period are less than $50, Audible will have the right to withhold making a payment and carry such payment forward to the next reporting period. Any ACX royalty statements Audible provides to you will be considered final and incontestable 3 months from the date the statements are provided by Audible if you do not object to the statements within that period of time.
Legal Contracts

ACX Royalty Payment Terms and Procedures for Rights Holders Pay-for-Production Deals: Audible Exclusive Distribution Rights

Version 2.1 (06/01/2017)

Payment Terms

These ACX Royalty Payment Terms and Procedures for Rights Holders, Pay-for-Production Deals (Audible Exclusive Distribution Rights) ("Royalty Terms") set forth the terms by which Audible will calculate and pay royalty payments owed to Rights Holder in connection with Audible's distribution of any Audiobook based on Rights Holder's Book("Royalties"), as set forth in the Book Posting Agreement that Rights Holder agreed to when posting the applicable Book on ACX. These Royalty Terms form a part of the ACX Book Posting Agreement. Capitalized terms used in these Royalty Terms but not defined have the meaning assigned to such terms in the ACX Book Posting Agreement.
Audible will pay Royalties to Rights Holder only on Audible Net Sales Receipts (as defined below) it receives from sales of the Audiobook.
Audible will calculate Royalties using the Royalty Rate below. Audible will calculate and report all Royalties based solely on sales of the Audiobook, without combining such sales with sales of other audiobooks produced through ACX.

Royalty for Rights Holders under Pay-for-Production Deals (Audible Exclusive Distribution Rights)

Audible will pay the Rights Holder 40% of all A La Carte Net Sales Receipts and 40% of all Member Net Sales Receipts from sales of the Audiobook.

Royalty Calculation

During the Distribution Period, Audible will pay the Rights Holder the Royalty set above. For purposes of this agreement, Audible Net Sales Receipts consist of: (i) A La Carte Net Sales Receipts (as defined below) for all a la carte sales of the Audiobook, and (ii) Membership Net Sales Receipts (as defined below) for all sales of the Audiobook to customers who are members of one of Audible's membership programs, in each case, during the immediately preceding monthly period. No Royalty will be paid on the transmission or distribution of downloads or other copies of the Audiobook distributed for free for purposes of review, sample, advertising, publicity or promotion, provided that free copies distributed by Audible or its sub-distributors do not exceed the greater of 100 copies or five percent (5%) of the total number of Audiobooks sold by Audible or its sub-distributors during the applicable accounting period.
  • "A La Carte Net Sales Receipts"means the monetary amount received by Audible from a la carte sales of each Unit, less any cash incentives, promotional discounts, sales or use taxes, excise taxes, value-added taxes, duties, and returns.
  • "Membership Net Sales Receipts"means, for each Unit, the monetary amount obtained by multiplying the AudibleListener Allocation Factor (as defined below) by Audible's a la carte price for the Unit at the time the AudibleListener Allocation Factor is calculated.
  • The "AudibleListener Allocation Factor"means the total of all membership sales receipts derived from sales of all content sold by Audible in the applicable accounting period, less any cash incentives, promotional discounts, device subsidies or rebates, sales or use taxes, excise taxes, value-added taxes, duties and returns, divided by the total a la carte value (as determined by Audible's applicable a la carte price for the Audiobook at the time the AudibleListener Allocation Factor is calculated) of the membership sales of all content sold by Audible in the applicable accounting period.

Royalty Statements and Payments.

For Rights Holders residing in the United States, Audible will provide Rights Holder a statement of Royalties, together with a check or direct deposit in the amount of any Royalty due, on a calendar monthly net 30 day basis, commencing with the first full month after the Audiobook is first offered for sale by Audible. For Rights Holders residing in the United Kingdom, Canada, or the Republic of Ireland, Audible will provide Rights Holder a statement of Royalties together with a direct deposit in the amount of any Royalty due, on a monthly net 30 day basis, commencing with the first full month after the Audiobook is first offered for sale by Audible provided, however, that payments to Rights Holders residing in Canada or the Republic of Ireland with respect to Audiobooks first offered for sale by Audible in June of 2017 will commence not later than August 31, 2017. All payments made by Audible will be inclusive of any applicable VAT or equivalent applicable sales tax. Audible may deduct or withhold any taxes that Audible may be legally obligated to deduct or withhold from any amounts payable to you, and payments as reduced by such deductions or withholdings will constitute full payment and settlement to you. You will provide Audible with any forms, documents, or certifications as may be required for Audible to satisfy any information reporting or withholding tax obligations with respect to any payments. Rights Holders and Producers are solely responsible for their own compliance with all applicable tax laws, including but not limited to the Canadian Excise Tax Act, and the payment of any applicable taxes. If the Royalties owed to Rights Holder for any accounting period are less than $50, Audible will have the right to withhold making a payment and carry such payment forward to the next reporting period. Any ACX royalty statements Audible provides Rights Holder will be considered final and incontestable 3 months from the date the statements are provided by Audible if Rights Holder does not object to the statements within that period of time.

EARN EVEN MORE!

You can get (or split) a $50 bonus payment whenever a qualifying audiobook you produce through ACX is one of the first three purchases by an AudibleListener member. Tell your friends. Use your online social network to tell everyone you know and earn -- $100, $1000, or more. Your viral marketing drives how much you make. Learn More


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