Catalog Subscription Service Agreement
Last revised 09/15/2017
Audible, Inc. ("Audible") offers services that provide subscribers access to listen to specified catalogs of digital audio products (each, a "Catalog Subscription Service").
By clicking the enrollment button for this agreement (this "Agreement"), you are confirming that Audible may make the works you select on the enrollment page (the "Works") available through its Catalog Subscription Service(s), subject to the terms below as well as to the terms of any agreements that you've previously entered into with Audible, including, but not limited to, your ACX Account Holder Agreement, any audiobook license and distribution agreements and any book posting agreements (together, the "Prior Agreements").
- Catalog Subscription Royalty. For any Catalog Subscription Service in which Audible makes available Digital Audio Products based on the Work(s), Audible will pay you the applicable percentage of all Catalog Subscription Service Receipts (the "Catalog Subscription Royalty") as follows: 25% for Works for which Audible has non-exclusive distribution rights, 40% for non-Royalty Share Works for which Audible has exclusive distribution rights; and 20% for Royalty Share Works. For any Royalty Share Work, Audible will pay the person or entity who produced the finished audiobook (the "Producer") 20% of Catalog Subscription Service Receipts for the applicable Work. A Royalty Share Work is a Work for which a Producer is paid on a royalty share basis pursuant to the applicable Prior Agreement.
- "Digital Audio Product" means an audio version of a Work in digital format.
- "Catalog Subscription Service Receipts" means the number calculated by multiplying the aggregate number of minutes of your Digital Audio Products listened to by members of a Catalog Subscription Service by a fraction, the numerator of which is Net Receipts for that Catalog Subscription Service, and the denominator is the aggregate number of minutes of all digital audio products consumed by members of that Catalog Subscription Service.
- "Net Receipts" means amounts actually received by Audible, less previously unaccounted returns, exchanges, refunds, bad debt, promotional discounts or rebates, and any applicable, duties and sales, use, VAT, excise, consumption or similar taxes. If amounts received by Audible represent payment for multiple services or multiple catalogs of content of an Audible Service, in calculating Net Receipts, Audible will allocate Net Receipts among the individual services or catalogs.
- Inclusion in Catalog. You understand that Audible is under no obligation to make any Digital Audio Product available in a Catalog Subscription Service. You further understand that if Audible does make a Digital Audio Product available in a Catalog Subscription Service, Audible is under no obligation to continue to make such Digital Audio Product available.
- Term/Termination. This Agreement will be effective upon your enrollment, and will continue with respect to each Work until the corresponding license and distribution agreement or book posting agreement for such Work expires or is terminated (the "Term"). If the Term ends and/or a Digital Audio Product is no longer available in a Catalog Subscription Service, any subscriber who has selected that Digital Audio Product for listening during the Term may continue to access it until they return it or their subscription terminates, subject to Audible's continued payment of Catalog Subscription Royalties as set forth in Section 1 above.
- Payments. Audible will provide you a statement of any Catalog Subscription Royalties due to you, as well as a check or direct deposit for those royalties (if any), on a calendar quarterly net 60 day basis commencing with the first full quarter after a Digital Audio Product is first made available through a Catalog Subscription Service. If Catalog Subscription 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 royalty statements Audible provides you will be considered final and incontestable 3 months from the date the statements are provided if you do not object to the statements within that period of time.
- Taxes. All payments made by Audible will be inclusive of any applicable VAT or equivalent applicable sales tax. To the extent that any payments hereunder are subject to applicable Taxes, you may charge and Audible will pay applicable national, state or local sales or use taxes or VAT that you are legally obligated to charge ("Taxes"), provided that such Taxes are stated on the original invoice that you provide to Audible and your invoices state such Taxes separately and meet the requirements for a valid tax invoice. Audible may provide you with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, you will not charge and or collect the Taxes covered by such certificate. Audible may, but is not obligated under this Agreement to, withhold taxes owing from amounts payable to you. Payments to you that are reduced by such deductions or withholdings will constitute full payment and settlement to you of amounts payable to you, and 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 to you. You are solely responsible for your compliance with all applicable tax laws, and the payment of any applicable taxes.
- General. This Agreement together with the Prior Agreements constitute the complete agreement between you and Audible, and supersede all prior or contemporaneous agreements between you and Audible, with respect to the inclusion of the Works in a Catalog Subscription Service. Notwithstanding the forgoing, if you and Audible have previously entered into a written agreement expressly regarding the availability of the Works through a Catalog Subscription Service, such agreement will remain in full force and effect, and this Agreement will not apply. This Agreement may only be modified in a writing agreed to by both you and Audible. In the event that any provision of this agreement is held invalid by a court or arbitrator with jurisdiction over the parties, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this agreement will remain in full force and effect. You and Audible are independent contractors. Neither you nor Audible is an agent, employee, representative, or partner of the other party. You will not represent yourself to be an employee, representative, or agent of Audible. You will have no authority to enter into any agreement on Audible's behalf or in Audible's name or otherwise bind Audible to any agreement or obligation. You will not assign any part or all of this Agreement without Audible's prior written consent. Any attempt to assign in violation of this section is void in each instance. Audible may assign this Agreement (or any of its rights and obligations under this Agreement): (a) to any of its affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction. This agreement will be binding on you and Audible upon your execution via affirmative email response.
- Governing Law. This Agreement is governed by the laws of the State of New York, without reference to its conflict of law rules. Each party agrees to exclusive personal jurisdiction and venue in the federal and state courts in New York County, New York for any dispute arising out of this Agreement.