THIS AGREEMENT is made is made on this date (logged as date of services date)
This AGREEMENT made between the author, publisher, or rights owner (the “Rights Holder”) and Fictionwide, (Totally Entwined Group Limited) of Newland House, The Point, Weaver Road, Lincoln, LN6 3QN, UK (“Fictionwide”).
, writing as of , , , , (“Rights Holder”).
Collectively referred to as “the Parties” or individually “a Party”
Concerning all Works provided by Rights Holder for Audiobook Production (the “Work” or “Works”). WHEREAS, Fictionwide is acting as a producer, publisher and distributor of audiobooks; WHEREAS, the Rights Holder is the owner of the Work; WHEREAS, the Rights Holder and Fictionwide wish to produce a completed audiobook of the Work (the “Audiobook” or “Audiobooks”); and NOW THERFORE in consideration of the mutual promises set forth, the parties hereby agree as follows:
This agreement is supplemental to the original Terms and Conditions signed by the Rights Holder upon registration at the Fictionwide Site and made between Fictionwide and the Rights Holder relating to the production and distribution of creative Works. (‘the Original Contract’)
2. Variation & Incorporation
Fictionwide and the Rights Holder agree and declare the terms contained within this agreement shall be incorporated into the Original Contract.
3.1 In this Agreement, unless the context requires otherwise.
3.1.1 words and expressions that are defined in the Copyright, Designs and Patents Act 1988 shall bear the same meanings in this Agreement;
3.1.2 words importing the singular number shall include the plural and vice versa;
3.1.3 words importing any particular gender shall include all other genders;
3.1.4 references to persons shall include bodies of persons, whether corporate or incorporate;
3.1.5 words importing the whole shall be treated as including a reference to any part of the whole;
3.1.6 the headings do not affect the interpretation of this Agreement
3.2 Definitions shall have the meaning given to them as set out in the Original Contract.
4.1. Rights Holder will agree, for any produced Audiobook, to participate in either the share audiobook production program or one of the pre-paid audiobook production programs through Fictionwide. For all such Audiobooks, the following terms and conditions (“Terms and Conditions”) will apply.
4.2. Disclosure of Information: During the casting process, Rights Holder may be presented the opportunity to provide certain sales or other contextual information to Fictionwide and any potential narrators of the production. Fictionwide is not responsible for ensuring the confidentiality of any such provided information.
4.3. BASIC Production Plan (Pre-paid Participation Terms): Rights Holder will pay a Flat rate fee of £1,499 and will receive 65% of Royalties earned for the duration of the Term. All pricing provided by Fictionwide for Pre-paid productions is the accurate and final production pricing, inclusive of any discounting.
4.4. PRO Production Plan (Share Participation Terms): Rights Holder will pay a £229 flat fee for casting/scheduling and will share 65% of Royalties earned with the Narrator for the duration of the Term for any Audiobook accepted into the Share program. All pricing provided by Fictionwide for Share productions is the accurate and final production pricing, inclusive of any discounting.
4.5 ELITE Production Plan (Pre-paid Participation Terms): Rights Holder will pay a casting/scheduling flat fee of £229, a post-production of £170pfh (per finished hour), a Narrator fee of £195pfh (per finished hour) and will receive 65% of Royalties earned for the duration of the Term. All pricing provided by Fictionwide for Pre-paid productions is the accurate and final production pricing, inclusive of any discounting.
4.6 VIP Production Plan (Pre-paid Participation Terms): Rights Holder will pay a Service fee £529pfh and will receive 65% of Royalties earned for the duration of the Term. All pricing provided by Fictionwide for Pre-paid productions is the accurate and final production pricing, inclusive of any discounting.
4.7. In addition, for the duration of the Term of Participation, Rights Holder agrees to the following:
4.7.1 The Term of Participation for Share Productions will be as defined in Clause 7.3 of this Agreement.
4.7.2 For the avoidance of doubt, all Audiobook Productions will be subject to exclusive distribution with fictionwide for the full Term of Participation.
4.7.3 During the Term of Participation, Rights Holder agrees that Fictionwide will retain a Share fee equal to thirty-five per cent (35%) of the Royalties earned for the Work under the Fictionwide Digital Distribution Agreement.
4.7.4 Fictionwide may, at its discretion, provide the Narrator of any Production up to 25 promotional codes facilitating free access to the same Production. Such codes areintended for promotional purposes only and may not be sold, re-sold, raffled, or otherwise monetized by the Narrator. For the avoidance of doubt, no Royalties shall be earned or paid out to Rights Holder or Narrator for the redemption of such promotional codes.
4.5. Production Cancellation Fees: Should cancellation of the production of a Share Production occur under the terms laid forth in Clause 6 of this Agreement, the per-finished-hour rate applicable to any cancellation shall be double the amount agreed upon in the title-specific Production Agreement.
4.6. Share Contract Cancellation Fee: Rights Holder may opt out of the Term of Participation at any time following thirty (30) days written notice and payment of a Cancellation Fee equal to two (2) times the production fee paid to Fictionwide for the Share Production. For the avoidance of doubt, the initial production fee and/or any Share fees from royalties generated for the Share Production will not apply to the Cancellation Fee. The Share fee will continue to apply until the start of the calendar month following receipt of the Cancellation Fee.
4.7. Cancellation due to Delay of Distribution: Rights Holder agrees that should the finished Audiobook not be launched (as defined in the Term of Participation Section) by the Rights Holder within six (6) months of the completion of the Production, Fictionwide, at its sole discretion, may proceed as though Rights Holder provided written notice of intent to opt out, including the charging of the Cancellation Fee noted above.
5. Production Services
5.1 Fictionwide will submit for Rights Holder approval the finished Audiobook per the terms agreed to in the Production Agreement. Any changes to such terms must be mutually agreed to in writing between Rights Holder and Fictionwide.
5.2 All 'Per-Finished-Hour' production pricing shared with Rights Holder for the production of the Audiobook will be fully inclusive of all duration-based fees, including narration costs.
5.3 Any production with a final duration of less than sixty (60) minutes will be rounded to one (1) finished hour for the purpose of determining the final billable duration. Any production with a final duration greater than sixty (60) minutes will be billed based on the actual duration.
6. Rights Holder Approvals
6.1 Narrator Assignment: Rights Holder will have the right to select Narrators as recommended by Fictionwide for the Audiobook.
6.2 Extended Sample: Rights Holder will approve an initial sample before Fictionwide will start the production of the full Audiobook. If the full duration of the Audiobook is less than one hour, Fictionwide may provide a shorter-duration Extended Sample at its discretion.
6.3 Audiobook Production: Rights Holder will have the right to approve the fully recorded Audiobook to initiate completion of production. Fictionwide and Rights Holder will work in good faith to ensure approval of each completed Audiobook.
6.3.1 Production Approval Process: Rights Holder may request revisions to the finished recording and Narrator will make up to two (2) sets of revisions to specific items within the finished Audiobook as identified and time-stamped by Rights Holder. Such specific revisions may include, but are not limited to, the correction of a small number of mispronunciations, removal of extraneous sounds, recording of skipped or missed phrases, or other items not related to the overall tone or style of the Audiobook. The Narrator is under no obligation to record a full revision of the full Audiobook.
6.3.2 Production Approval Timing: Following the first submission of the finished recording, Rights Holder will have ten days to approve or request revisions. For any subsequent review of the finished recording, Rights Holder will have two (2) days to either approve or request revisions. Should Rights Holder not meet the timing obligations set forth in this Clause 6.3.2, Rights Holder may be deemed to have given final approval of the Audiobook and would, in such instance, be responsible for the full cost of the Audiobook’s production agreed upon in the Production Agreement as well as the cost of any further post-approval revisions.
6.3.3 Post-Approval Revisions: Rights Holder will be responsible for all costs associated with any subsequent changes to Audiobooks requiring the narrator to re-record any amount of the Audiobook once it has been approved.
6.4 Non-payment: In the event of non-payment at the time of production approval, Fictionwide reserves the right to charge the unpaid balance to the Rights Holder’s payment method on file.
7. Right to Produce Audiobook
7.1 The Author appoints Fictionwide as the sole and exclusive agent of the Author during the Term of the Contract to produce, sell and exploit and enter into contracts and collect all income arising in relation to the exercise by third parties for the duration of the term set out in Clause 7.3. In consideration of such appointment Fictionwide undertakes to pay to the Author a percentage of the income received by Fictionwide in respect of the royalties received as set out in Clause 8.
7.2 Fictionwide's sole and exclusive rights and obligations to collect all income arising under any license granted under Clause 7.1 above shall subsist for the full period of the Term irrespective of the expiry or termination of the rights contained in Clause 4 and Clause 20 of the Original Contract or the expiry or termination of Fictionwide's appointment as agent.
7.3 Term of Participation: The Terms and Conditions shall apply to any given Audiobook upon signing of the title-specific Production Agreement, and will apply for a period of two (2) years following the launch of the audiobook for the BASIC Plan, seven (7) years following the launch of the audiobook for the PRO Plan, and twelve (12) months ollowing the launch of the audiobook for the ELIT and VIP Plans. The launch of the Audiobook shall be defined as the launch date of the Audiobook set by the production team on the Fictionwide Website, or the date that the Production is released by Fictionwide under Distribution, whichever occurs later.
7.4 Once Rights Holder and Fictionwide have entered into a Production Agreement for a specific Work, Rights Holder will neither produce nor grant any third party the right to produce an audio version of the Works identified for Audio Production by Fictionwide. Fictionwide understands that if Rights Holder or Fictionwide terminates this Agreement or any Production 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 Fictionwide with respect to the Audiobook.
7.5 Rights Holder asserts that all content submitted to Fictionwide for production meets the expectations set in the Fictionwide Program Policy, available on the Fictionwide website. Fictionwide may choose to not facilitate production, distribution, purchasing, listening, or sales for any Audiobook at any time at Fictionwide’s sole discretion.
8. Author Royalties
5.1 Fictionwide shall collect all income arising from the Agreement in relation to the Contract extension thereby granted and shall agree to pay to the Author Royalties on the following terms:
65% of Net Sales after cost of production fee paid in full for BASIC, ELITE and VIP Plans.
32.5% of Net Sales after cost of production fee paid in full for PRO Plan.
9. Third Party Engagement
Fictionwide may contract with third parties to assist in the production of the Audiobook, including to perform services such as production company, narrator, editor, or studio engineer. Fictionwide agrees to be responsible for the final production of the Audiobook even if Fictionwide hires one or more third parties to assist in the production. Should a Narrator referenced in a Production Agreement fail to meet performance standards or timing expectations, Fictionwide and Rights Holder agree to work mutually to reach an appropriate resolution.
10. Promotional Materials
Rights Holder grants Fictionwide and the Narrator the right to use the Sample and any recording made during Narrator auditions for marketing and promotional purposes.
11.1 Rights Holder hereby appoints Fictionwide its exclusive agent, to distribute, throughout the world, through any of Fictionwide’s Distribution Partners indicated by Rights Holder on the Fictionwide website, wherever situated, the Recordings, which may be complete, condensed, or abridged versions of the Audiobooks. Rights Holder grants to Fictionwide and its Distribution Partners an exclusive, royalty-free, worldwide license to use the Rights Holder’s brand features and Audiobooks (in whole or in part) in connection with the Audiobooks and the marketing, promotion and advertising of the Audiobooks on partner services and through applications and devices; and presentations, financial reports, press releases, and customer lists, websites, and blogs. All use of Rights Holder’s brand features, and all goodwill associated with that use, will inure solely to the benefit of Rights Holder. Subject to the express license granted, rights, title, and interest in and to Rights Holder’s brand features are and will remain with Rights Holder. Rights, authorizations, and licenses granted by Rights Holder allow Distribution Partners to make the applicable Audiobooks available to every member of an applicable Family Group in the same way as to the user that purchases the applicable Audiobooks for the purpose of Family Sharing. Rights Holder authorizes Fictionwide to create Previews not to exceed 20% of the runtime of the Recording. The Recordings shall be distributed solely by means of digitally delivered downloads and any other medium for sound reproduction or transmission now known or which may hereafter become known or developed. Fictionwide agrees to perform the following services for Rights Holder:
11.1.1 Convert the files of the Audiobooks necessary for the Rights Holder to use Fictionwide’s digital download distribution services (the “Services”) in a format compatible with the Services. The Rights Holder agrees to cooperate with Fictionwide and to provide Fictionwide with all necessary information and assistance required by Fictionwide to successfully convert the Rights Holder’s files and Fictionwide may, at its sole discretion, assign an ISBN(s) for the Audiobook if needed.
11.1.2 For the Library Channel, Fictionwide will ensure Digital Rights Management (DRM) protection to all downloadable titles.
11.1.3 An industry-standard introduction will be added to the beginning of each recording. By way of example, intro may include narrator’s voice saying, “This audiobook is brought to you by XYZ Rights Holder and Fictionwide.” This introduction may include a third party production house if one is used in the production of the Audiobook.
11.1.4 Bill and collect the amount due for all sales of the Recordings made by Fictionwide as Rights Holder’s agent; and
11.1.5 Receive and respond as appropriate to all customer service enquiries.
11.2 If Fictionwide fails to fulfill or comply with any provision of this Agreement within 60 days after written notice from Rights Holder of such failure, or if Fictionwide takes advantage of any insolvency law, commences the liquidation of its business, or becomes bankrupt, files a petition for an arrangement under the Federal Bankruptcy Act, makes an assignment for the benefit of its creditors, or if a receiver or trustee is appointed of substantially all of its assets, then without further notice, Fictionwide’s appointment as Rights Holder’s agent and Fictionwide’s other rights under this Agreement can terminate and Fictionwide shall remain liable for any amounts due or which may become due hereunder.
11.3 Rights Holder controls the appropriate rights in and to the packaging Artwork on Rights Holder’s sound recordings of each of the applicable Audiobooks and grants Fictionwide the right to use without charge said Artwork in connection with the description of the applicable Recordings. Rights Holder will provide the Artwork and metadata describing each Audiobook according to Fictionwide’s requirements via the Fictionwide website. Rights Holder grants Fictionwide and Fictionwide’s Distribution Partners a non-exclusive right to use Rights Holder’s name, likeness, and biographical information for the purposes of promoting and marketing each Audiobook. If requested, Rights Holder may provide Fictionwide with appropriate promotional materials for use to market the Audiobook. Rights Holder grants Fictionwide the right to add or include Fictionwide’s logos or verbiage on applicable materials.
11.4 Fictionwide will, from time to time, add new Distribution Partners, channels, business models, and associated royalties. Rights Holder will be automatically included in any of these new opportunities.
11.4.1 If a Distribution Partner of Fictionwide issues a refund to a customer for downloadable Audiobooks, such refund will be charged back to Rights Holder.
11.5 Fictionwide agrees to maintain accurate books of accounts, which reflect sales and titles sold under different channels and business models separately.
11.6 All taxes due in the selling and distribution of an Audiobook shall be the responsibility of each individual Distribution Partner. Rights Holder is responsible for any income or other taxes due resulting from Distribution Royalty payments made by Fictionwide to Rights Holder under this or any other Agreement. Fictionwide may deduct or withhold amounts from Distribution Royalty payments if required under applicable tax legislation.
11.7 Rights Holder agrees that Fictionwide may withhold Distribution Royalty payments if Rights Holder is in breach of this or any other agreement with Fictionwide.
11.8 Fictionwide may, at its discretion, provide promotional codes for facilitating free access to Rights Holder’s audiobooks. Such codes are intended for promotional purposes only and may not be sold, re-sold, raffled, or otherwise monetized. For the avoidance of doubt, no royalties shall be earned or paid out to Rights Holder for redemption of such promotional codes.
12. Remitance and Accounting
12.1 Fictionwide shall render to Rights Holder monthly statements of account for any sale. Fictionwide shall send such statements, together with payments for the amount due, if any,within thirty (30) days following the end of the period in which Fictionwide collects the Distribution Royalty and receives such similar reports from each individual DistributionPartner. Payment due, if any, will be made to Rights Holder at the destination specified by Rights Holder in the Fictionwide website prior to initiation of payment and will post suchrequirements on the Fictionwide website. In the event that such payment threshold is not met, Fictionwide will remit payment and make all accounts current within thirty (30)days following the end of each calendar year.
12.2 Payments will be made to Rights Holder in United States Dollars (USD) or Pounds Sterling (GBP) unless otherwise agreed upon.
12.3 Statements shall state for each accounting period the number of copies of each of Audiobooks sold by Fictionwide.
12.4 Fictionwide may, at its discretion, provide preliminary sales reporting functionality. Such preliminary reporting should be treated as unofficial and is not to be used for calculation ofRights Holder’s monthly royalty payment.
Fictionwide will retain all right, title, and interest in and to the Audiobook including the sound recording copyright, until such time that Audiobook production fee is paid in full; at which time all right, title and interest in and to the Audiobook including the sound recording copyright shall revert to the Rights Holder.
14. Changes to Terms
Fictionwide reserves the right to change, edit, improve, add, or delete portions of these terms at any time as set out herein.
15. Representations, warranties and Indemnities
Rights Holder represents and warrants to Fictionwide that it has the right to enter into this Agreement and any Production Agreements, to appoint Fictionwide as its exclusive agent for production and to grant the rights herein granted; that no material in the Work violates the right of privacy or publicity or any proprietary or personal right of any person; that the Audiobooks are not libelous or obscene; and that they do not infringe upon the copyright or intellectual property of anyone (including but not limited to any use of song lyrics, movie quotes, and other similar content), that they do not contain any material that is harmful or may subject Fictionwide to liability to any third party or is otherwise contrary to law; and Rights Holder agrees to defend, indemnify and hold Fictionwide and its affiliates, and their respective employees, officers, directors, shareholders, and representatives harmless against any loss, expense (including reasonable attorney’s fees) or damage occasioned by any claim, action, proceeding or recovery arising out of a claim which would, if sustained, be a breach of any of the foregoing representations or warranties (a “Claim”), subject to the conditions that (i) Fictionwide promptly notify Rights Holder of any such Claim; (ii) Fictionwide permit Rights Holder to defend and at Rights Holder’s option, settle, at Rights Holder’s expense, such Claim with counsel selected and paid for by Rights Holder; and (iii) that Fictionwide provide all reasonable assistance requested by Rights Holder in connection with such Claim at Rights Holder’s expense.
16. Limitations on Liability
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FICTIONWIDE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL FICTIONWIDE OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR FICTIONWIDE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL FICTIONWIDE’S OR ITS AFFILIATES’ TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY FICTIONWIDE TO RIGHTS HOLDER HEREUNDER DURING THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY HEREUNDER.
All notices required under this Agreement shall be in writing and shall be given by certified or other receipted form of email (acknowledgement /acceptance of receipt required) to the other party at either the addresses provided below, the address provided by Rights Holder via the Fictionwide Workflow, or such other addresses as a party may specify by notice:
18. Force Majure
It shall not be deemed a breach of this Agreement or of any Production Agreement if performance is delayed or impossible due to fire, flood, war, terror attack, tornado, Act of God, or otherunforeseeable circumstance that is beyond the control of the party who failed to perform.
Fictionwide and Rights Holder may assign its rights in the Agreement 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 either party of any obligations under the Agreement.
20. Entire Agreement
Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms, and further agrees that this Agreement and the Exhibits annexed hereto constitute the complete and exclusive statement of the agreement between the Parties and supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the Parties relating to the subject matter of this Agreement.
21. Governing Law
This Agreement is legal and binding in all countries. This Agreement shall be governed by the law of England and Wales and the Parties hereto submit to the exclusive jurisdiction of the English courts.
6. Electronic Signature
An electronic signature by you shall constitute your signature signifying acceptance of this Agreement with the intent that it be valid for all purposes and in compliance with the eIDAS Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, and, the U.S. Electronic Signatures in Global and National Commerce Act of 2000 and the laws of any other applicable jurisdiction.
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Signed by Claire Siemaszkiewicz
Signed On: March 26, 2023
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Document Name: Audiobook Agreement
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