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 Agreement as 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.