Book Project Publication Agreement

1.  Purpose and Scope. Client is hiring SPARK to collaborate and assist in the publication design and services related to a book/book project as described on the Signature page of this Agreement (“Book” or “Book Project”) that Client is writing and creating. Exhibit 1, which is attached and hereby incorporated, contains standard project phases, deliverables and information about SPARK services including the scope of services that may be offered by SPARK to Client. SPARK and Client will work to determine which of the phases and services SPARK will perform for Client. 

2. Responsibilities. SPARK and Client agree that SPARK is being hired to assist Client in the design and pre-press production and post production of the Book which will require several phases of work. An initial scope of work and estimate (“Estimate”) will be provided to Client based on the information known or provided after the initial consultation (“Strategy Session”.)  The terms and agreements contained in the Estimate shall be considered to be an addendum to this Agreement. It is understood that all work is custom produced for the Client with their provided directions and materials. Client shall designate one person who is also the primary contact and decision maker. This primary contact has authority and full sign-off approval for each Phase of the Book Project. Additional non-author persons introduced into the process will result in additional time and costs and such persons shall  not have sign-off approval rights. 

SPARK shall provide the services as the parties agree in the Estimate, which once created, shall be an addendum to this Agreement with its terms and conditions incorporated herein. SPARK will perform its obligations under this Agreement and the Estimate in a timely, good, and workmanlike manner. Client shall supply all content and approvals in a timely manner, and all content shall be submitted in required formats. The Estimate shall include further information about the services to be provided by SPARK, responsibilities of Client, and additional terms and deadlines for payments of fees to be made by Client to SPARK. Unless otherwise agreed in writing, signed by an officer of SPARK, all materials are to be submitted by the Client to SPARK by the materials due date. Any services requested by Client in addition to the services listed on the Estimate will be billed to Client at the then current hourly rates of SPARK, and Client agrees to pay for such services upon receipt of the invoice for such services from SPARK. SPARK will provide a copy of its current rate schedule to Client upon Client's request. Any changes to the services listed in the Estimate may result in additional fees for such services. Client acknowledges that in the event of any cancellation, termination, or alteration of the Estimate by Client without the consent of SPARK (except as otherwise allowed by this Agreement), Client agrees that SPARK shall be entitled to payment in full for all work performed and payments due as of the date of such cancellation or termination as set forth in the Estimate. Prior payments made are non-refundable. Such rights provided herein shall not be deemed exclusive, but rather shall be cumulative, and in addition to any other remedies to which SPARK may be entitled. Any time the Book Project is delayed, accelerated, or direction, vision, content, topic, or materials change, it is considered a change of Estimate and will alter the costs and timing of the Book Project, and such changes are subject to the consent of SPARK.

Proofs are provided to the client and are to be returned to SPARK via the provided online PDF proofing system. Instructions and opportunities for further one-on-one instructions are provided to the client. Using any other form of scanned, handwritten, offline proofing techniques or methods will incur delays, additional proofs, additional costs.

3. Payment Terms.  Client will pay SPARK the then applicable fees described in Estimate and any other Fees required under the terms of this Agreement (“Fees.”) 

A. An initial non-refundable fee as listed under the Client signature on this Agreement shall be due upon the signing of this Agreement. 

B. The Book Project Estimate shall set out the payments due to SPARK based on estimates of the time and complexities expected for each phase. The estimates and payments required shall be based on hourly rates for SPARK’s work. Additional words, editing, pages, content, design, reviews with Client, required corrections, and other related factors, over and above the estimates provided by SPARK, will increase the number of hours of work by SPARK employees or contractors and the amount due from Client. The estimates are calculated based on the information provided to SPARK from Client and may be updated if significant changes are made to the Estimate. 

C. All payments for each phase of the Book Project are based on the estimates in the Estimate and will be due on the earlier of the deadline for submission by Client or when Client is ready to begin that phase. SPARK shall not be required to perform work on the next Phase of the Book Project until the estimated payment, and any additional fees or expenses related to the prior Phases, have been paid to SPARK. Invoices from SPARK to Client are due and payable upon Client’s receipt of such invoice. Payment of all prior invoices will be due before final files are uploaded to the printer. If Client Estimate includes any marketing design and post-production services, those services may be invoiced separately and after the files are uploaded to the printer. 

D. Client will be charged for all additional work necessary for the Book Project and additional requests by Client outside the Estimate at the then current hourly rates of SPARK.

E. See Exhibit 1 for Standard Project Phases, Deliverables, Additional Services and fee information.  

F. Payment made by Client through a credit card or bank wired funds is subject to a three percent (3%) service charge. In the event that Client does not pay any invoice from SPARK in full within thirty (30) calendar days of the date of such invoice, any unpaid amounts due from such invoice shall accrue interest at a rate equal to Two Percent (3%) of such amount per month until paid. Further services will not be performed without timely payment. Any discounts or additional costs incurred will be applied to the final or additional invoice.  SPARK reserves the right to change the hourly rate or other charges upon thirty (30) days prior written notice to Client (which may be sent by email.)  All fees are non-refundable. 

G. Client may engage SPARK to provide additional services and analysis agreed upon by the parties in writing, which may be billed separately. Any deviation from the Estimate, alterations of project specifications, and additional requests or delays by Client will result in price and timeline changes. 

H. Client shall pay SPARK for external expenses which may include: editing, custom graphics and illustrations, scans, licenses, licensed images, purchased graphics, etc.

I. Any taxes required to be assessed under state or federal laws will be added to Client invoices.

4. Client Responsibilities. Client is responsible for all text, photos, graphics or other items to be incorporated into designs produced by SPARK (the "Content"), including editing such Content and providing such Content in formats designated by SPARK. Client bears sole responsibility for, and SPARK is not responsible in any way for, Content including, but not limited to, Copyrighted materials, the truth, validity, accuracy or completeness of such Content, the licensing of such Content or typographical, grammatical, clerical or other errors contained in such Content. All Content is deemed approved by Client once the Book Project is approved to go to print or to post online. Client represents and warrants to SPARK that Client owns or has the necessary Copyrights, licenses, and authority to use all such Content and that the use of such Content by Client or SPARK will not be subject to claims of infringement by Client or SPARK or other claims of third parties and that such use will not violate any applicable laws, rules, or regulations. Any exceptions to this Paragraph 4 must be expressly provided in writing by Client and consented to by SPARK owner in writing.

All text, edits, proofing, and content are the Client’s full responsibility. The Client accepts all liability for the final, published Book Project. Client must send a digital copy of the final approved manuscript that includes all final text, any and all italics, bolds, bold, italics, and other special formatting requests. All text submitted must be final and, once submitted as final manuscript, is considered the Client’s final, edited text.

5. Title/Use. Without limiting Client’s other intellectual property rights in materials or works delivered for SPARK’s use pursuant to this Agreement, SPARK agrees and acknowledges that all work product and publications produced hereunder and delivered to and paid for by Client shall constitute “works made for hire” and/or specially commissioned works owned exclusively by Client. Upon payment in full by Client for the services provided by SPARK, except as provided in this Agreement, SPARK's right, title and interest in and to the work product created by SPARK, including any copyright, shall be transferred to Client and Client shall be sole owner of such work product.  Until payment in full by Client to SPARK, SPARK shall retain all rights, title and interest in and to the work product created by SPARK. Client and SPARK expect a mutually beneficial relationship, and Client anticipates that SPARK will be permitted the creative latitude necessary to advance the relationship, SPARK's talents, and Client's brand. 

SPARK is permitted the use of and retains rights and license to use the work produced, Book, and Book Project in its portfolio and promotions. All editable production files remain property of SPARK. Final deliverables provided to Client, once all invoices paid in full by Client, will be PDF or JPG formats.

Archives of Client’s work may be maintained by SPARK. However, SPARK shall not be responsible or required to maintain the files.

6. Indemnification/Limitation of Liability. Client agrees to indemnify, reimburse, defend, and hold harmless SPARK, its shareholders, directors, officers and employees from and against any and all third-party damages, losses, claims, obligations, penalties, liabilities, settlements, or expenses (including lost profits, reasonable attorney’s fees or court costs) suffered or incurred by reason of any claims, actions, proceedings or suits based on or arising, directly or indirectly, from the Content, Materials, Book, Book Project, publication, or SPARK services.  Client's breach of this Agreement or any of the representations and warranties contained in or related to this Agreement or other actions or omissions of Client, its owners, agents, employees or representatives. 

SPARK’s violation of any intellectual property right or license granted to SPARK by Client herein (including the licenses in Section 5 and 9) or from SPARK’s fraud, gross negligence, or willful misconduct, or material and significant breach of this Agreement, Client hereby agrees and acknowledges that (a) SPARK shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages including, but not limited to, loss of profits, goodwill, use or other intangible losses (even if SPARK has been advised of the possibility of such damages) resulting from any matter relating to this Agreement; and (b) Client's only remedies for any breach of this Agreement by SPARK shall be, in SPARK's sole discretion, either (1) refund of amounts not to exceed those paid to SPARK by Client pursuant to this Agreement or (2) SPARK's correction of such breach and performance in accordance with this Agreement. The provisions of this Section shall survive the termination of this Agreement.

7. Force Majeure. Neither party shall be in default or breach of this Agreement in the event that either party’s failure to perform is due in whole or in part to any breach of this Agreement by the other party, by the other party’s suppliers, civil disorder, failure of power, governmental law or regulation, riots, insurrections, war, shortages, accidents, casualties, acts of God, delays caused directly or indirectly by the other party, the other party’s owners, employees, agents or representatives, or any other cause beyond the reasonable control of the party unable to perform. The party whose performance is affected by a force majeure event will give reasonably prompt notice of the event to the other party, together with an estimate of the amount of time that performance will be delayed or affected by the event.

8. Miscellaneous. This Agreement shall inure to and be binding upon Client, SPARK, their successors and permitted assigns. The invalidity of or inability to enforce any part or parts of this Agreement shall not result in a termination of this Agreement nor shall such invalidity affect any other part or parts of this Agreement, and the Agreement shall continue to be binding and effective with the invalid or unenforceable parts being stricken as if the same were never written. Any waiver by a party of any default of the other party or any failure by a party to exercise any rights under this Agreement or to insist upon strict performance of any obligations of the other shall not constitute a waiver or release of any rights and remedies of that party in the event of a subsequent default of the same nature or of any other default on the part of the other party. No waiver of the terms and conditions hereof shall be effective unless such waiver is in writing and signed by the Client and SPARK. No modification, amendment, addition to or termination of this Agreement shall be valid or enforceable unless in writing and signed by Client and SPARK. This Agreement shall be governed by and interpreted and construed according to the laws of the State of North Carolina without giving effect to the conflicts of laws provisions thereof. The parties hereto agree to the jurisdiction and venue of the courts of Mecklenburg County, North Carolina. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels all prior or contemporaneous oral or written understandings between them with respect to the subject matter hereof.  The captions in this Agreement are for convenience of reference only, and shall not be considered a part hereof or be given any effect in the construction or interpretation of this Agreement.

9. Client’s Marks and Intellectual Property.

A. Client grants to SPARK a permanent limited, non-exclusive, non-transferable (except as provided), royalty-free right to use certain trademarks and logos owned or licensed by Client for the purposes of SPARK’s performance of this Agreement and marketing for Client and SPARK (“Client Marks”). Nothing herein transfers to SPARK or any of SPARK’s agents any ownership of or goodwill in the Client Marks.

B. Except for the permitted uses outlined in paragraphs 5 and 9A, neither party shall display or use the other’s trade names or any part thereof, or any of its service marks, brands or trademarks, separately or in combination, as a part of or in connection with its firm, trade or corporate name, without the express written consent of the other party.

C. This section shall survive the termination of this Agreement.

D. Notwithstanding the above, publication of approved materials on behalf of Client does not violate this Section 9.

10. Right to Terminate. Notwithstanding any provision in this Agreement, Exhibit 1, or the Estimate to the contrary, the following termination provisions apply:

A. Either Party’s failure to perform any material obligation under this Agreement shall be a default (“Default”) under this Agreement. In the event of a Default by either Party, the non-defaulting Party shall provide the defaulting party with Notice of Default, specifically identifying the nature of the default. If the Default remains uncured at the expiration of thirty (30) days after the defaulting Party’s receipt of the Notice of Default, this Agreement may be terminated by the non-defaulting Party by notice of termination by the non-defaulting Party.

B. Either Party (“Terminating Party” for purposes of this subsection) may terminate this Agreement for cause, with notice to the other Party (“Non-Terminating Party” for purposes of this subsection) if the Non-Terminating Party or any of its principals, officers, directors, or executive-level employees (collectively, the “Non-Terminating Party” for purposes of the remainder of this subsection) are the subject of a charge, conviction or plea of guilty in a court of law of any felony or misdemeanor or civil action involving a crime of moral turpitude or other similar serious misconduct or criminal activity that, in the Terminating Party’s good faith and reasonable determination, would be detrimental to the reputation and goodwill of the Terminating Party.

C. Either Party may terminate this Agreement, upon notice, if an assignment is made by the other Party for the benefit of creditors; if a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any substantial portion of the other Party’s property; if the other Party files a voluntary petition under federal bankruptcy laws or similar state statutes; or if such a petition is filed against the other Party and is not dismissed within sixty (60) days.

D. Should Client decide to discontinue the publication of their Book Project without publishing, Client may terminate this Agreement and shall use its best efforts to give SPARK sixty (60) days advance written notice of such decision. Without limiting the foregoing, Client shall be obligated to pay for work completed or in process pursuant to the terms of this Agreement and the Estimate.

E. In the event of termination, Client is obligated to issue full payment of SPARK’s estimated work as provided in the Estimate if the publication, Book, Book Project or a work is produced by or in connection with Client, its successors, heirs or assigns.

F. All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, ownership, proprietary rights, confidentiality, indemnity, warranty disclaimers and limitation of liability.

11. Confidentiality. SPARK agrees to keep confidential and refrain from disclosing any and all confidential and proprietary information that is provided directly to a SPARK owner and is marked as special and confidential (collectively, “Confidential Information”) of Client, which has been or will be obtained by SPARK in the course of this engagement. Confidential Information includes, but may not be limited to, Client’s strategies in publication and business models. Client shall notify SPARK in writing of information provided hereunder that is intended to be Confidential Information and only provide such information to SPARK’s owner, and SPARK agrees that such information will be maintained in confidence according to this Agreement. However, Confidential Information shall not include information which: (a) at the time of disclosure is generally available in the relevant trade or to the public; (b) was available on a non-confidential basis prior to its disclosure to SPARK in connection with this Agreement; (c) became available on a non-confidential basis from a third party provided that such third party is not breaching an obligation of confidentiality to either party to this Agreement; (d) was known by SPARK, or in SPARK’s possession prior to the signing of disclosure; (e) was independently developed by SPARK; (f) was not marked as confidential when provided to SPARK’s owner; and/or (g) material that is intended to be in the publication or public. Further, Confidential Information shall not include Materials or Content that are intended to be published.

SPARK also agrees: (a) to take all reasonable precautions necessary to safeguard Confidential Information of Client from disclosure to any person other than appropriate employees, officers, directors and agents (including counsel and financial advisors) of SPARK who have a need to have access to such information; and (b) not to use the Confidential Information for any purpose other than to assist SPARK in the performance of its duties under this Agreement.

12. Tax Obligations. Client agrees to pay all taxes, including sales tax and royalties, related to the Book and Book Project and the income generated from its sale.

13. Independent Contractors. The relationship created hereunder between Client and SPARK shall be solely that of independent contractor and Client entering into an agreement. No representations or assertions shall be made or actions taken by either party which could imply or establish any agency, joint venture, partnership, employment or trust relationship between the parties with respect to the subject matter of this Agreement. Client and SPARK shall not have any authority or power whatsoever to enter into any agreement, contract or commitment on behalf of the other, or create any liability or obligation whatsoever on behalf of any person or entity. Under no circumstances shall one Party to this Agreement have vicarious liability, in whole or in part, for the actions or inactions of the other Party. In connection with any claims brought by any third parties, the Parties hereto are independent contractors, and not employees or agents, of one another.

14. Assignment. SPARK may assign this Agreement or any of its rights and obligations hereunder this Agreement (including by assignment or sale of business or assets) without the consent of Client. Client may not assign this Agreement or any of its rights and obligations hereunder without express written consent of SPARK. Any attempt to assign or transfer such rights or obligations in contravention of the foregoing restriction shall be of no force or effect. Subject to the foregoing, this Agreement and all of the provisions hereof will be binding upon any successor and permitted assigns of the assigning party.

15. Legal Fees. Notwithstanding any limitation of liability provisions in this Agreement, the prevailing party to any legal proceeding, including any arbitration agreed between the Parties, shall be entitled to recover reasonable attorney’s fees, expert’s fees, costs, and expenses.

16. Counterparts. This Agreement, Exhibit 1, Estimate, and any Addendum may be signed in any number of counterparts all of which together shall constitute one and the same document. A signed copy of such instruments transmitted via facsimile, email or other electronic means shall constitute an originally signed instrument, and, when together with all other required signed copies of the same instrument, shall constitute one and the same instrument.