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 Translation Production (the “Work” or “Works”). WHEREAS, Fictionwide is acting as a producer, publisher and distributor of Translations; WHEREAS, the Rights Holder is the owner of the Work; WHEREAS, the Rights Holder and Fictionwide wish to produce a completed Translation of the Work (the “Translation” or “Translations”); 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 Translation, to participate in the Share Translation production program through Fictionwide. For all such Translations, the following terms and conditions (“Share Terms and Conditions”) will apply.
4.2. Share Participation Terms (Production): Rights Holder will be presented a 50% discounted production fee for any Translation accepted into the Share program. All pricing provided by Fictionwide for Share productions is the accurate and final production pricing, inclusive of any discounting.
4.3. In addition, for the duration of the Term of Participation, Rights Holder agrees to the following:
4.3.1 The Term of Participation for Share Productions will be as defined in this Agreement, below.
4.3.2 For the avoidance of doubt, Share Productions will be subject to the Sole Distribution Rights requirement for the full Term of Participation.
4.3.3 During the Term of Participation, Rights Holder agrees that Fictionwide will retain a Share fee equal to ten per cent (10%) of the Royalties earned for the Work under the Fictionwide Digital Distribution Agreement, for the avoidance of doubt, this Share fee will be in addition to the remaining 50% production fee which will be recouped from Royalties before any payments are made to the Rights Holder.
4.4.4 Fictionwide may, at its discretion, provide the Translator of any Share Production up to 25 promotional codes facilitating free access to the same Share Production. Such codes are intended for promotional purposes only and may not be sold, re-sold, raffled, or otherwise monetized by the Trnaslator. For the avoidance of doubt, no royalties shall be earned or paid out to Rights Holder or Translator 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 final Translated Works 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 Translation not be released (as defined in the Term of Participation Section) by the Rights Holder within six (6) months of the completion of the Share 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 Translation 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 Translation pricing shared with Rights Holder for the production of the Translation will be fully inclusive of all duration-based fees, including Translation costs and based on a per word rate.
6. Rights Holder Approvals
6.1 Translator Assignment: Fictionwide will select the Translator based on the language requested by the Rights Holder.
6.2 Five per cent Sample: Rights Holder will approve an initial five per cent sample before Fictionwide will start the production of the full Translation.
6.2.1 Sample Approval: Rights Holder agrees to review and either approve or request revisions to the Five per cent Sample within 2 days of receipt of the Five per cent Sample. Revisions at this stage may include changes to word choice, tone, minor edits that would be incorporated into the full Translation. If such revisions are requested, Rights Holder may request a single re-edit of the Five per cent Sample by Translator before commencing with the full Translation. For clarity, following the approval of the Five per cent Sample, the Rights Holder will be required to pay for any significant changes to the edit in the full Translation not allowed explicitly in Clause 6.3, such as, but not limited to, to word choice, tone, minor edits following the approval of the Five per cent Sample.
6.2.2 Sample Approval Impasse: A Sample Approval Impasse may be initiated under the following three cases or as otherwise determined by Fictionwide: (i) by Rights Holder, in the event that Rights Holder does not approve of the second edit of the Sample and informs Fictionwide in writing, (ii) By Fictionwide, in the event that Rights Holder has not met the timing obligations set forth in Clause 6.2, or (iii) by the Translator or Fictionwide, in the event that the Rights Holder has misrepresented the content of the book and/or has not provided a fully edited and publication-ready manuscript to Translate. Initiation of a Sample Approval Impasse will cancel the associated Production Agreement, and Rights Holder will be responsible for payment of the agreed to Translation.
6.3 Translation Production: Rights Holder will have the right to approve the final Translation to initiate completion of production. Fictionwide and Rights Holder will work in good faith to ensure approval of each completed Translation.
6.3.1 Production Approval Process: Rights Holder may request revisions to the finished Translation and Translator will make up to two (2) sets of revisions to specific items within the finished Translation as identified and time-stamped by Rights Holder. Such specific revisions may include, but are not limited to, errors, accuracy, wording, branding and style, consistency, or other items not related to the overall tone or style of the Translation. The Translator is under no obligation to do a full revision of the full Translation.
6.3.2 Production Approval Timing: Following the first submission of the finished Translation, Rights Holder will have ten days to approve or request revisions. For any subsequent review of the finished Translation, 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 Translation and would, in such instance, be responsible for the full cost of the Translation’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 Translations requiring the Translator to re-edit any amount of the Translation once it has been approved.
6.3.4 Full Production Approval Impasse: If, after two revisions to specific corrections of a completed Translation (according to the guidelines specified herein), Rights Holder does not approve of the Translation, then Rights Holder may terminate the Production Agreement for the Translation by payment of a cancellation fee equal to 90% of the agreed upon pricing for all work completed and available on the Fictionwide website up to date of non-approval. In the event of cancellation, Rights Holder agrees in this case to delete all copies of files associated with the Translation, make payment of the cancellation fee immediately, and Rights Holder may not make the Translation available for sale or consumption through any distribution channel.
6.4 Non-payment: In the event of non-payment at the time of production approval, a production approval impasse, or a sample approval impasse, Fictionwide reserves the right to charge the unpaid balance to the Rights Holder’s payment method on file.
7. Right to Produce Translation
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 Share Terms and Conditions shall apply to any given Translation upon signing of the title-specific production agreement, and will apply for a period of five (5) years following the release of the Translation. The release of the Translation shall be defined as the release date of the a Translation set by the production team on the Fictionwide Website, or the date that the Share 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 Translation and will have no further obligation to Fictionwide with respect to the Translation.
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, reading, or sales for any Translation 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:
50% of Net Sales after cost of production fee paid in full.
9. Third Party Engagement
Fictionwide may contract with third parties to assist in the production of the Translation, including to perform services such as production company, Translator, editor or production administration. Fictionwide agrees to be responsible for the final production of the Translation even if Fictionwide hires one or more third parties to assist in the production. Should a Translator 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 Translator the right to use the Five per cent Sample made during Translation 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 Translation. Rights Holder grants to Fictionwide and its Distribution Partners an exclusive, royalty-free, worldwide license to use the Rights Holder’s brand features and Translations (in whole or in part) in connection with the Translations and the marketing, promotion and advertising of the Translations 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 Translations available to every member of an applicable Family Group in the same way as to the user that purchases the applicable Translations for the purpose of Family Sharing. Rights Holder authorizes Fictionwide to create Previews not to exceed 10% of the runtime of the Translation. The Translation shall be distributed solely by means of digitally delivered downloads and any other medium for 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 Translations 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 Translation 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 legal page will be added to the beginning of each Translation.
11.1.4 Bill and collect the amount due for all sales of the Translation 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 each of the applicable Translations and grants Fictionwide the right to use without charge said Artwork in connection with the description of the applicable Translations. Rights Holder will provide the Artwork and metadata describing each Translation 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 Translation. If requested, Rights Holder may provide Fictionwide with appropriate promotional materials for use to market the Translation. 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 Translations, 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 Translation 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 Translations. 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) unless otherwise agreed upon.
12.3 Statements shall state for each accounting period the number of copies of each of Translation 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 Translation including the copyright, until such time that the Translation production fee is paid in full; at which time all right, title and interest in and to the Translation including the 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 Translations 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: February 17, 2023
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Document Name: Translation Agreement
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