ACX Book Posting Agreement

Last revised 3/12/14

Version 1.5

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"). 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.

1. Authority to Enter Into this Agreement.

   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:

   1. The author of the Book, and have not transferred the audiobook production and distribution rights to the Book to any third party or, if you have transferred the rights, have regained the rights because they have reverted to you (an "Author");
   2. A person or entity to whom the author of the Book has, directly or indirectly, transferred the audiobook production and distribution rights to the Book, including a publisher of the Book (a "Rights Recipient"); or
   3. An agent or other authorized representative of an Author or a Rights Recipient to whom the Author or Rights Recipient has granted full power and authority to enter into this Agreement on behalf of the Author or Rights Recipient.

2. Rights

   You represent and warrant that:

   1. You have the full right, power and authority to enter into and fully perform this Agreement;
   2. You have obtained all rights necessary for Audible to exercise the rights granted under this Agreement;
   3. Neither the Book itself nor the materials embodied in it, nor the production and distribution of the Audiobook as permitted hereunder nor the exercise of the rights granted under this Agreement will 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;
   4. The Book does not contain any defamatory material;
   5. The Book is not in the public domain and does not fall within any other category of books that are not eligible for production on ACX; and
   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.

3. ACX Offer and Acceptance Procedures and ACX Audiobook Production Standard Terms

   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.

4. Exclusive Right to Produce an Audiobook

   1. Once you have posted a Book on ACX, you will not produce, or authorize the production of, an audio recording of the Book in the Language for distribution in the Territory other than through ACX until you remove the Book from ACX so that the Book no longer has a Title Profile on ACX and is no longer listed as available for production on ACX. You may remove a Book from ACX at any time after you have posted it to ACX and before you have entered into an ACX Audiobook Production Agreement with a Producer by following the procedures provided for doing so on ACX.
   2. Further, if you enter into an ACX Audiobook Production Agreement with a Producer, you will not produce, or authorize the production of, an audio recording of the Book in the Language for distribution in the Territory other than through ACX until the date that is 7 years from the date the completed Audiobook is delivered to Audible in accordance with the terms set forth in the ACX Audiobook Production Agreement, unless no Audiobook is produced within 4 months after the date the Audiobook must be completed, as set forth in the ACX Audiobook Production Agreement, for reasons other than your failure to abide by your obligations under the agreement. In the event no Audiobook is completed within 4 months after the date the Audiobook must be completed under the ACX Audiobook Production Agreement for reasons other than your failure to abide by your obligations under the agreement, nothing in this Agreement will prevent you from re-posting the Book on ACX and making it available again for production as an audiobook on ACX or removing the Book from ACX.
   3. By posting a Book on ACX, you grant to each ACX participant who auditions to produce the audiobook a non-exclusive, non-transferrable, non-sublicensable license to use their audition recording as a "sample" of their work on their ACX Producer Profile page.

5. Distribution By Audible.

   1. IF YOU ELECT TO GRANT AUDIBLE EXCLUSIVE DISTRIBUTION RIGHTS AND THE AUDIOBOOK IS PRODUCED THROUGH ACX, THE FOLLOWING TERMS APPLY:
      You grant to Audible the exclusive right to distribute the Audiobook throughout the Territory from the date the Audiobook is completed until the date that is 7 years from the date the completed Audiobook is delivered to Audible in accordance with the terms set forth in the ACX Audiobook Production Agreement (such 7 year period, the "Initial Term"). As full consideration for the exclusive distribution rights granted by you to Audible, Audible will pay you royalties on its sales of the Audiobook based on the Audible Exclusive Royalty Escalator Model as set forth in Audible’s standard ACX Royalty Payment Terms and Procedures for Royalty Share Deals or Audible’s standard ACX Royalty Payment Terms and Procedures for Pay-for-Production Deals (Audible Exclusive Distribution Rights), as applicable, in effect as of the date of the Deal Confirmation Page. Click the links to see the current version of the ACX Royalty Payment Terms and Procedures for Royalty Share Deals and the ACX Royalty Payment Terms and Procedures for Pay-for-Production Deals (Audible Exclusive Distribution Rights). After the Initial Term, this Agreement will renew automatically for additional 1 year terms (each, a "Renewal Term") unless either party provides written notice of termination to the other party at least 60 days prior to the end of the Initial Term or the then-current Renewal Term.
   2. IF YOU ELECT TO GRANT AUDIBLE NON-EXCLUSIVE DISTRIBUTION RIGHTS AND THE AUDIOBOOK IS PRODUCED THROUGH ACX, THE FOLLOWING TERM APPLIES:
      You grant to Audible the non-exclusive right to distribute the Audiobook throughout the Territory from the date the Audiobook is completed until the date that is 7 years from the date the completed Audiobook is delivered to Audible in accordance with the terms set forth in the ACX Audiobook Production Agreement (such 7 year period, the "Initial Term"). As full consideration for the non-exclusive distribution rights granted by you to Audible, Audible will pay you royalties on its sales of the Audiobook based on the Audible Non-Exclusive Royalty Escalator Model as set forth in Audible’s standard ACX Royalty Payment Terms and Procedures for Pay-for-Production Deals (Audible Non-Exclusive Distribution Rights) in effect as of the date of the Deal Confirmation Page. Click the following link to see the current version of the ACX Royalty Payment Terms and Procedures for Pay-for-Production Deals (Audible Non-Exclusive Distribution Rights). After the Initial Term, this Agreement will renew automatically for additional 1 year terms (each, a "Renewal Term") unless either party provides written notice of termination to the other party at least 60 days prior to the end of the Initial Term or the then-current Renewal Term.
   
   The 7 year period during which Audible has distribution rights and each Renewal Term in either of the above cases is the "Distribution Period."

6. Delivery of Completed Audiobook

   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.

7. Other Rights Granted to Audible

   1. Additional Territories. You can expand the Territory at any time to add additional countries (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. The "Territory" will be deemed to include the Additional Territory as of the date of your email to Audible and Audible’s distribution rights under this Agreement will automatically extend to include the Additional Territory.
   2. Excerpts. During the Distribution Period, Audible will have the right to make, use and distribute excerpts from the Audiobook in the Territory in any media now known or hereafter invented for purposes of advertising and promoting the Audiobook. Such excerpts will be created by Audible and will not exceed 20 minutes in length or 10% of the total duration of the finished Audiobook, whichever is longer, and will be a verbatim excerpt from the Audiobook (each, an "Audible Excerpt"). Audible grants you a non-exclusive, non-transferrable, non-sublicensable license to use any Audible Excerpt solely online on a website for purposes of promoting the Audiobook. 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. If you want to use an Audible Excerpt you may request that Audible send you an Audible Excerpt by emailing info@acx.com. Title to the digital file containing an Audible Excerpt will pass to you upon transmission by Audible. You may use any Audible Excerpt and any excerpts you create from the Audiobook to promote the Audiobook, but you may not promote Audible, ACX or the Audible service without the prior written consent of Audible. In addition to the foregoing, Audible will have the right to use the excerpt that is delivered to ACX pursuant to Section 6 in the Territory in any media now known or hereafter invented for purposes of advertising and promoting ACX and the Audible service.
   3. 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 Book that you upload to ACX once the audiobook production process begins, in accordance with ACX procedures for uploading artwork ("Artwork") and the title of the Book in the Territory in any media now known or hereafter invented for purposes of advertising and promoting the Audiobook. Audible may reformat the Artwork to meet its technical requirements and may alter or edit the Artwork to conceal inappropriate nudity or other elements in its sole and absolute discretion. The Artwork will 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 use reasonable efforts to provide Audible with other suitable artwork. If you don’t have the right to make the artwork used for the print version of the Book available for use with the Audiobook and you don’t have other artwork to provide Audible, you will select the button that indicates that you have no artwork when you approve the finished Audiobook using the approval submission feature for rights holders on ACX. You cannot approve a finished Audiobook uploaded by a Producer to ACX without (i) uploading artwork (or having previously uploaded artwork to the Title Profile), or (ii) selecting the button that indicates that you have no artwork when you approve the finished Audiobook. If you have no artwork to provide Audible, you agree that Audible may use the title of the applicable Book against a plain background color selected by Audible or other cover art design prepared or selected by Audible in its sole discretion as the cover art design for the Audiobook and in connection with Audible’s advertisement and sale of the Audiobook.
   4. Right of Publicity Grant. During the Distribution Period, Audible will have 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. Upon request, you will promptly 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. Additionally, if you are not the author of the Book, you agree to obtain for Audible the right to use, during the Distribution Period, the author’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.
   5. Metadata. During the Distribution Period, Audible will have the non-exclusive right and license to reproduce, reformat for online display, transmit, display, and use the digital ISBN or similar product identifier, title, genre, author, publisher, initial publication date, Territory, audio CD list price, and other textual information identifying or related the Book that you deliver to Audible (collectively, the "Metadata"), in connection with the marketing, distribution, and sale of the Audiobook and the Audible service.

8. Geo-Filtering

   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.

9. Provision of Word Count

   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.

10. Payments to 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.

11. Withholding and Offset of Royalty Payments

    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 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) in the deal confirmation page; up to a maximum of $2,500 as full payment for the Producer’s services in creating the Audiobook.

12. Designation of Exclusive or Non-Exclusive Distribution Rights to Audible and Change of Designation

    1. If you elect to pay the Producer who produces an Audiobook a one-time production fee, you have the option of granting Audible exclusive or non-exclusive distribution rights to the Audiobook, and if you grant Audible exclusive distribution rights, you can change your grant to non-exclusive at any time after the one year anniversary of the date that Audible first makes the Audiobook available for sale by emailing info@acx.com with a request for the change. If you make this request after this initial one-year period, Audible will change its distribution right to the Audiobook to non-exclusive effective within 60 days from the date of its receipt of your request. Audible will notify you in writing when the change is made and the date of Audible’s written notification will be the effective date of the change. Until the effective date of the change, the applicable Audiobook remains exclusive to Audible and you cannot distribute the Audiobook to other retail outlets or through other distribution channels. From and after the effective date of the change, the number of units sold will be reset to zero and you will be entitled to royalties on sales of the Audiobook by Audible in accordance with Audible’s standard ACX Royalty Payment Terms and Procedures for Pay-for-Production Deals (Audible Non-Exclusive Distribution Rights) in effect as of the date Audible receives your notice requesting the change. Click the following link to see the current version of the ACX Royalty Payment Terms and Procedures for Pay-for-Production Deals (Audible Non-Exclusive Distribution Rights)
    2. If you elect to pay the Producer who produces an Audiobook using the ACX royalty share option, you must grant Audible exclusive distribution rights to the Audiobook and you cannot change your grant to non-exclusive.

13. Direct Payment of Royalties by Audible to Producer

    If you elect to pay the Producer who produces an Audiobook using the ACX royalty share option, 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.

14. Audible Controls its Distribution Decisions

    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, 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) if you agreed to the royalty share payment option with the Producer 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) in the deal confirmation page; up to a maximum of $2,500 as full payment for the Producer’s services in creating the Audiobook.

15. Ownership

    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.

16. Execution of Further Agreements and Documents

    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.

17. Indemnification
    

    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 royalty or other payments made by Audible to the Producer you engaged to produce the Audiobook that is the subject of your indemnity obligation.

18. Account Holder Agreement

    The ACX Account Holder Agreement is expressly incorporated into and made a part of this Agreement.

19. Entire Agreement; Enforceability

    This Agreement 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. 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.

20. Governing Laws and Disputes

    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.