This ACX Book Posting Agreement ("Agreement") is a binding agreement between you, or the company or entity you represent, if you are entering into this Agreement on behalf of a company or entity ("you"), and Audible, Inc. ("Audible", "we" or "us"), a United States corporation. It sets forth the terms you agree to when you make a book available for production as an audiobook on the audiobook production service and rights marketplace available at www.acx.com ("ACX") (any book you make available on ACX for production as an audiobook, a "Book"). You enter into this Agreement each time you make a Book available on ACX. That means that there is a separate Agreement between you and us for each Book you make available on ACX.
Among other things, in this Agreement you grant to us distribution rights in any audio recording of the Book that is completed through ACX (an "Audiobook") in the territory or territories you indicate (the "Territory") and the language you indicate (the "Language") when creating the title profile for your Book on ACX (the "Title Profile"). Our distribution rights to the Audiobook are either exclusive or non-exclusive, as provided below and as indicated by you in the Title Profile or when preparing a production offer page ("Production Offer Page") to a producer on ACX ("Producer") to make an Audiobook.
You represent and warrant that you are legally entitled to make the Book available for production and distribution as an audiobook because you are either:
You represent and warrant that:
When you send an offer to a Producer to produce an Audiobook, you agree to make the offer in accordance with the ACX Offer and Acceptance Procedures. If the Producer accepts your offer, the terms set forth in the deal confirmation page generated by ACX confirming your agreement with the Producer for the production of the Audiobook (the "Deal Confirmation Page") and the ACX Audiobook Production Standard Terms in effect as of the date of the Deal Confirmation Page will apply to your agreement with the Producer. The Deal Confirmation Page and version of the ACX Audiobook Production Standard Terms in effect as of the date of the Deal Confirmation Page are your "ACX Audiobook Production Agreement" with the Producer.
The 7 year period during which Audible has distribution rights and each Renewal Term in either of the above cases is the "Distribution Period."
When the Producer you engage finishes production of the Audiobook, the 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. You will be required to approve the Audiobook and excerpt using the ACX approval submission feature for rights holders in order for the Audiobook and excerpt to be deemed approved and ready for distribution by Audible.
Audible will use geographic filtering technology or other territory-to-customer matching system designed to limit the distribution of the Audiobook to the Territory ("Geographic Filtering System"). You acknowledge that any such Geographic Filtering System will not be able to fully prevent the delivery of the Audiobook outside the Territory and agree that Audible will be deemed to have delivered the Audiobook within the Territory as long as Audible has used the Geographic Filtering System in connection with such distribution.
You will provide the word count for the Book in the Title Profile. If the word count you provide underestimates or overestimates the actual length of the Book by 20% or more, the Producer you engage to produce the Audiobook may terminate the Producer's ACX Audiobook Production Agreement with you based on your inaccurate word count in accordance with the terms of your ACX Audiobook Production Agreement with the Producer.
You understand that any Producer you engage that personally performs narration services for the Audiobook may be a member of a talent union or guild that requires a portion of the Producer's earnings under your ACX Audiobook Production Agreement with the Producer to be paid to the union or guild's pension, health and welfare account. Audible may, from time to time, post Payment Conditions for Certain Producers on ACX that govern payments by rights holders to such Producers under ACX audiobook production agreements ("Payment Conditions"). These Payment Conditions may include, among other things, instructions for sending all or a portion of a Producer's earnings to an independent paymaster or directly to the pension, health and welfare account of the applicable union or guild. You agree to abide by any Payment Conditions posted on ACX as of the date of the Deal Confirmation Page for any ACX Audiobook Production Agreement you enter into with a Producer.
If you are in breach of any of your obligations to Audible or to another ACX participant under any ACX agreement applicable to an Audiobook (a "Breach") or if a third party has asserted that you did not have all rights required to grant the rights that you granted in the applicable Book through ACX ("Third Party Claim"), royalties due to you on the applicable 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. Each party will notify the other in writing of any Breach or Third Party Claim of which it is aware within 5 days after it learns of the Breach or Third Party Claim. Audible will recommence sending you royalty payments 30 days after you send Audible documentation evidencing that you have cured the Breach or fully resolved the Third Party Claim. Further, Audible is entitled to offset any indemnity or other payment that you owe Audible with respect to a Breach or Third Party Claim related to an Audiobook against royalty payments Audible owes you on the applicable Audiobook. If you elect to pay the Producer who produces an Audiobook using the ACX royalty share option without a one-time fee payment and Audible stops distribution of the Audiobook due to a Breach or Third Party Claim, you agree to pay the Producer a termination fee of $100 times the actual number of finished hours (in 10 minute increments) of the Audiobook; up to a maximum of $2,500 as full payment for the Producer's services in creating the Audiobook. If you elect to pay the Producer who produces an Audiobook using the ACX royalty share option with a one-time fee payment and Audible stops distribution of the Audiobook due to a Breach or Third Party Claim, you agree to pay the Producer a termination fee equal to the sum of (a) $100 plus (b) the agreed per finished hour rate on the deal confirmation page times the actual number of finished hours (in 10 minute increments) of the Audiobook; up to a maximum of $2,500 as full payment for the Producer's services in creating the Audiobook.
All payments made by Audible will be inclusive of any applicable VAT or equivalent applicable sales tax. Audible may deduct and withhold taxes owing from amounts payable to you, and 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 Audible may report payments made to you to applicable tax authorities. 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, including but not limited to the Canadian Excise Tax Act, and the payment of any applicable taxes.
If you elect to pay the Producer who produces an Audiobook using the ACX royalty share option (with or without a one-time fee payment), Audible will pay half of all royalties payable under this Agreement on sales of the Audiobook by Audible to you and the other half to the Producer who you engaged to produce the Audiobook as payment for Producer’s services in creating the audiobook.
Audible will have sole discretion over all decisions related to its marketing, distribution, and sale of the Audiobook, regardless of whether the distribution rights you grant to Audible in this Agreement are exclusive or non-exclusive. All Audiobooks distributed by Audible are subject to Amazon's Offensive Content Policy. 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 for any reason other than Audible's rejection due to quality issues or failure to comply with the Production Standard Terms, you may send Audible written notice requesting that Audible commence sale of the Audiobook. If Audible does not commence selling the Audiobook within 3 months after its receipt of your written notice, (a) this Agreement will automatically terminate and all rights in the Book and the Audiobook granted to Audible in this Agreement will revert to you and (b) (i) if you agreed to the royalty share payment option with the Producer without a one-time fee payment for production of the Audiobook, Audible will pay the Producer a termination fee of $100 times the actual number of finished hours (in 10 minute increments) of the Audiobook; up to a maximum of $2,500 as full payment for the Producer's services in creating the Audiobook or (ii) if you agreed to the royalty share payment option with the Producer with a one-time fee payment for production of the Audiobook, Audible will pay the Producer a termination fee equal to the sum of (a) $100 plus (b) the agreed per finished hour rate on the deal confirmation page times the actual number of finished hours (in 10 minute increments) of the Audiobook; up to a maximum of $2,500 as full payment for the Producer's services in creating the Audiobook.
As between you and Audible, except for the distribution rights you grant to Audible in this Agreement, you retain all right, title, and interest in and to the Book and the Audiobook, including the copyright in the Book and the copyright in the sound recording for the Audiobook. All rights in the Book not granted in this Agreement to Audible are expressly reserved by you.
Protection of rights sometimes requires formal filings of paper documents and it may be helpful to us to have physical signed versions of this Agreement or other documents. You agree to sign and deliver to us any further documents that we may reasonably request to confirm your grant of rights to Audible under this Agreement, following all instructions we provide for signature and return ("Additional Documents"). If you do not complete and return any such Additional Documents within 30 days after we request them, you agree that we can sign the Additional Documents on your behalf and, to make your agreement legally enforceable, you hereby irrevocably appoint us as your attorney-in-fact with full power to execute, acknowledge and deliver the Additional Documents as required to confirm our rights. In legal terms, your appointment is a power coupled with an interest.
You will indemnify and protect Audible, its affiliates, its subdistributors and any other ACX participant from any losses, costs, or liabilities incurred by any of them (a) because you did not have, or a claim is brought alleging you did not have, all rights required to grant the rights you grant to Audible in this Agreement, (b) as a result of a breach by you of any of your representations or warranties in this Agreement, or (c) as a result of your failure to meet any of your other obligations set forth in this Agreement or with respect to ACX generally. When this indemnity obligation applies, you will be required to pay all applicable costs and damages, including all costs of counsel to defend Audible, its affiliates and subdistributors and other ACX participants, and all damages awarded in a court of law against Audible, its affiliates and subdistributors and other ACX participants or in any settlement entered into by Audible, its affiliates and subdistributors and other ACX participants, including any costs associated with the resolution of any claim or proceeding. You will also be required to reimburse Audible for any payments made by Audible to the Producer you engaged to produce the Audiobook that is the subject of your indemnity obligation.
The ACX Account Holder Agreement is expressly incorporated into and made a part of this Agreement.
AUDIBLE IS NOT LIABLE TO YOU UNDER ANY CIRCUMSTANCE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR OPPORTUNITIES. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY PARTY'S LIABILITY FOR ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
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.
Notwithstanding any other provisions regarding governing law and disputes that may be applicable, this Agreement is governed by the laws of the State of New York. Except as may otherwise be specifically provided for in the ACX Dispute Resolution Procedures set forth in the ACX Account Holder Agreement, effective as of the date you accept this Agreement, 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.