DarkFire Productions

DarkFire Productions Standard Services Agreement- 10/2010 Version

THIS AGREEMENT IS MADE ON BETWEEN 1. the Customer (hereinafter referred to as the "Buyer"); and 2. DARKFIRE PRODUCTIONS, LLC (hereinafter referred to as the "Service Provider"),

collectively referred to as the "Parties"

WITNESSETH:

WHEREAS, The Service Provider is desirous of providing e-publishing and production services to Buyer upon the terms and conditions as contained herein; and

WHEREAS, The Buyer is desirous to use e-publishing and production services on the terms and conditions as contained herein;

NOW, THEREFORE, for and in consideration of the covenants and obligations contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1. DEFINITIONS: a. Sale price- the price paid by a customer to purchase a product.

b. List price- price that the product is shown as. Does not include any discounts or transaction fee(s). May or may not be the same as the sale price.

c. Net proceeds- proceeds paid to the Buyer as calculated by the following method: sales price minus the sum of any transaction fee, distribution partner fee, agent distribution fee, and Service Provider fee.

d. Transaction fee(s)- any fee levied by a third party to process the payment of a product (i.e. PayPal transaction fee).

e. Materials- shall mean the materials, in whatever form, used by the Service Provider to provide the Services and the products, systems, programs, or processes, in whatever form, produced by the Service Provider pursuant to this Agreement.

f. Deliverables- the final version of Service Providers products a/k/a the final version of Buyer's eBook, the final version of Buyers audiobook, etc.

g. Services- all services set out and defined by this document.

h. Start Date- is set out and defined by line located in 2.A-i.

i. Completion Date- is set out and defined by line located in 2.A-i.

j. Delivery Date- is set out and defined by line located in 2.A-i.

k. Partner Site- any distribution point that distributes a product produced by the Service Provider.

eBook Definitions:

l. eBook- an electronic copy of a book that can be read on a personal computing device.

m. Manuscript- an electronic version of Materials as provided by the Buyer.

n. Formatting- the process by which a Manuscript is converted to a serviceable format (i.e. eBook) for distribution through a Partner Site. No content of the Manuscript would be altered in this process, but grammatical formatting may be changed, added, and/or removed.

o. Premium Catalog- a Partner's Agent Site which may require additional formatting changes and other requirements in order to be used as a distribution point

p. Corrections- corrections to the eBook that are committed or omitted by the Service Provider will be corrected at no additional charge to the Buyer.
Audiobook Definitions:

q. Word Count- the total word count of the Manuscript provided by the Buyer. The word count will be used to calculate the Estimated Price.

r. Estimated Audio Hour- the quotient of the Word Count divided by the average Word Per Minute speaking rate of the voice talent (i.e. 150, 155, 160, etc.).

s. Final Audio Length- the actual run time from start to finish of the completed and produced audio file.

t. Price Calculation – is the Estimated Audio as developed by the Word Count of the Manuscript provided by the Buyer multiplied by the Finished Audio Eates in Appendix A or the Final Audio Length multiplied by the Finished Audio Rates in Appendix A.

u. Estimated Price- the price as calculated using the Estimated Audio Length in the Price Calculation.

v. Final Price- the total cost the Buyer agrees to pay for the Audiobook as calculated using the Final Audio Length in the Price Calculation.

w. Pick-ups- a re-recording of a segment of audio based on the Buyer's request.

x. Script Change- after the final manuscript of the Materials has been accepted by the Service Provider, the Buyer changes, corrects, adds to, or deletes content within the Materials.

y. Manuscript- electronic document that contains the final content of the Materials to be recorded or formatted. Buyer must deliver the manuscript to the Service Provider in an .RTF, .DOC, .DOCX, or .PAGES file.

z. Digital Rights Management (DRM) - Schema to determine what an end user can do with a digital file by the copyright holder.

aa. Control Viewing- a streaming viewing and/or listening of the proposed finished audio product. The Buyer will be given the opportunity to listen to and approve the final version of the product.

bb. Final Acceptance: the final release of the audio and/or e-product from the Service Provider to the Buyer.

2. DATES OF SERVICES

The Service Provider shall provide the following services (DESCRIPTION OF SERVICES) and final product(s) ("DESCRIPTION OF DELIVERABLES") as defined in Appendix A

a. Delivery of the Services:

i.The Service Provider shall commence the provision of the Services, Complete all Deliverables, and deliver all Deliverables by the dates listed in the Estimate

3. FEES, PAYMENT, ROYALTIES

a. As consideration for the provision of the Services by the Service Provider, the FEE for the provision of the Services is listed in Appendix A ("Estimate").

b. Payment of Fee:

i. The Buyer agrees to pay the Fee to the Service Provider in the following
manner: 50% of the Estimated Price prior to the Start Date.

ii. The remaining balance within will be due after the Controlled Viewing and Final Acceptance of the audio and/or e-product.

iii. The Service Provider shall release the product once the account is paid in full.

iv. The method of payment of the Fee by the Buyer to the Service Provider shall be by:

1) Check (cheque) sent to the following address: 21494 E Crestline Ln Centennial CO 80015

2) PayPal payment made to DarkFire Productions, LLC including the Buyer's payment of any PayPal transaction fee(s).

3) Check or Cash payment to be made in person to Christopher Snelgrove, Collin Earl, or Nicholas Taylor at a previously agreed upon location and time.

v. Any charges payable under this Agreement are exclusive of any applicable taxes, tariffs, surcharges, or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by the Service Provider to the Buyer under this Agreement and such shall be payable by the Buyer to the Service Provider in addition to all other charges payable hereunder.

vi. Any fee(s) incurred by the Service Provider in processing or depositing the Buyer's payment will be the responsibility of the Buyer.

vii. Any account not in good standing can be referred to a collections agency for recovery of bad debt

1) AT the discretion of the Service Provider, any and/or all proceeds from the sale of any of the Buyer's Deliverables through the Service Provider's own efforts or through the efforts of the Service Provider's authorized distribution partners will be paid towards the outstanding balance until the balance is:

a) Paid in full from the proceeds of any and all sales

b) Paid in full from a cleared payment from the Buyer

c) Any combination of a. or b.

c. Royalty Payments

i. The Buyer authorizes the Service Provider to act on their behalf in regards to collecting and processing proceeds from the sale of the Deliverables through the Service Provider's distribution site ("Site") and through the Service Provider's authorized partner's distribution site ("Partner Site") and their authorized agents' sites ("Agent Site").

ii. Required Tax forms will be provided by the Buyer to the Service Provider before any payments from Service Provider or Service Provider’s distribution partners will be made to the Buyer.

iii. The Buyer assumes all tax consequences as a result of the net proceeds paid to them. The Service Provider will comply with all state and federal reporting requirements as required by Colorado and Federal law.

iv. Should a Deliverable be sold from the Site, the Buyer will receive Net Proceeds of that sale in accordance with the provisions set forth in clause C subsection vii and clause C subsection x

v. Should a Deliverable be sold from a Partner Site or from and Agent Site, the Buyer will receive Net Proceeds in accordance with the provisions set forth in clause C subsection vii and clause C subsection x

vi. The Service Provider will provide to the Buyer a quarterly accounting of sales of specific product and services laid out in Appendix A through the Site, Partner Sites, and Agent Sites which will include the following:

1) An itemized list of sales by site and product

2) An itemized list of any Partner or Agent fees by product

3) An itemized list of any Service Provider fees by product

4) An itemized list of any Transaction fees by product

5) The Buyer's current escrow balance

6) Any distributions made to the Buyer since the last reporting statement

vii. Net Proceeds will be paid to the Buyer on a quarterly basis and will be subject to any Partner Site and/or Agent Site minimum distribution requirements. Distributions will only be made when the Buyer's account balance reaches or exceeds $25.00 and is in good standing.

1) Distribution of the Net Proceeds can be made to the Buyer via one of the following two methods:

a. Check to be mailed to the Buyer specified address; or

b. PayPal distribution to the Buyer's designated account (the Buyer will be responsible for any PayPal fees)

viii. At any point the Service Provider discounts the price of any Deliverable, the Net Proceeds will be calculated on the List Price, not the discounted Sale Price.

ix. The Buyer accepts all End User License Agreements and all Terms and Conditions of any Partner Site and/or Agent Site that the Deliverables are and/or will be distributed through.

x. The Service Provider will retain a 25% fee as their portion of the Net Proceeds calculation. This will be assessed after all Partners, Agent, and Transaction fees have been levied.

d. Affiliate Payments

i. The Service Provider participates in a number of Affiliate Programs in relation to their distribution partners. These agreements are independent and exclusive of this agreement.

ii. Any payments made to the Service Provider as a result of the Affiliate relationships remain the sole property of the Service Provider and are not subject to the terms of this agreement.

4. GENERAL TERMS

a. Intellectual Property Rights

i. Service Provider agrees to grant to the Buyer an exclusive, royalty free license to use, and copy any elements of the Deliverables specifically created for the Buyer as part of the Services. Any third party intellectual property rights are used in the Deliverable the Service Provider shall ensure that it has secured all necessary consents and approvals to use such third party intellectual property rights for the Service Provider and the Buyer.

ii. Service Provider will not infringe on author's rights regarding the content of the Materials or the creative liberty or license of the Buyer.

b. Distribution

i. The Service Provider hereby authorizes the Buyer to distribute any Deliverable through the Buyer's personal efforts. These efforts include but are not limited to face to face sales, sales from the Buyer's website, and/or replication of the Deliverable to a tangible media storage device for subsequent sale.

ii. The Service Provider reserves the right to sell any Deliverable through any
distribution point owned and operated by the Service Provider.

iii. The Service Provider agrees to distribute any Deliverable through their network of Partner and Agent Sites.

iv. The Buyer agrees to not enter in any agreement with a current Service Provider Partner, or 3rd party distribution site without the express written consent of the Service Provider for the distribution of any Deliverable covered in this agreement. Any relationships that exist between the Buyer and a Service Provider Partner prior to the enactment of this Agreement shall not be affected by the terms of this Agreement unless agreed to by both parties in an amendment.

v. The Service Provider reserves the right to price any Deliverable as they see fit. The Service Provider agrees to work with the Buyer to develop a strategic price for any Deliverable, and will actively seek to not actively compete with the Buyer's personal distribution efforts as related to pricing.

c. Digital Rights Management

i. Digital Rights Management is not provided on the any e-products of the Service Provider. This does not account for the actions of the Service Provider's affiliates and other distribution Partners. Buyer's products will be placed into the current Service Provider’s network of distribution sites. As more distribution Partners are added to the network, the Buyer’s products will be added to these points. The Service Provider will comply with all rules, regulations and qualifications of its Partner sites and distribution points which may or may not include the inclusion of DRM.

ii. Copyright and Trademark services will be provided to the Buyer by the Service Provider at the cost of the Buyer. The Buyer is not obligated to use Service Provider Copyright and Trademark services but some form of Copyright and/or Trademark must be obtained before the Service Provider will release any Deliverables to the Buyer.

iii. Digital Millennium Copyright Act Safe Harbor will be available at any distribution points so that the Servicer Provider and/or Buyer can be informed of any potential infringement of the Digital Millennium Copyright Act (DMCA). By signing this agreement Buyer acknowledges their responsibility under this provision of this contract and will respond to inquiries of the Servicer Provider within the time of seven (7) days.

d. Warranty

i. The Service Provider represents and warrants that:

a) it will perform the Services with reasonable care and skill; and

b) the Services and the Deliverables provided by the Service Provider to the Buyer under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.

ii. The Buyer warrants that:

a) the license contemplated under the Materials provided to the Service Provider has complete license basis, and has the copyright of the author as well as any neighboring rights. The Service Provider shall inform the Buyer in writing immediately when the Service Provider is charged by any third party for breach of copyright in connection with the License Content provided hereunder and/or under the Digital Millennium Copyright Act (DMCA), and the Buyer is obligated to assist in addressing the charge. If the Service Provider is obliged to compensate such third party as determined by court judgment or settlement acknowledged by the Buyer, the Buyer shall compensate the Service Provider for all losses incurred by the Service Provider there from (including compensation to any third party, attorney fees, etc.).

e. Limitation of liability

i. Subject to the Buyer’s obligation to pay the Fee to the Service Provider, either party’s liability in contract, tort, or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the Fee.

ii. To the extent it is lawful to exclude the following heads of loss and subject to the Buyer’s obligation to pay the Fee, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data, or any other indirect or consequential loss or damage whatsoever.

iii. Nothing in this Clause will serve to limit or exclude either Party’s liability for death or personal injury arising from its own negligence.

f. Term and Termination

i. This Agreement shall be effective on the date hereof and shall continue, unless terminated sooner in accordance with the terms of this contract.

ii. Either Party may terminate this Agreement upon notice in writing if:

a) The other is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party so to do;

or

b) a voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party's assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding- up petition or make a winding-up order in respect of the other Party.

iii. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

g. Relationship of the Parties

i. The Parties acknowledge and agree that the Services performed by the Service Provider, its employees, agents, or subcontractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship, or otherwise between the parties.

ii. The Parties acknowledge that in no manner does this service agreement purport to establish the Chief Legal Officer (CLO) of the Service Provider as legal counsel for Buyer. Nor has the CLO in his capacity, training, and experience as an attorney offered any legal advice, counsel, or his legal opinion to Buyer.

a) Buyer has sought independent advice and legal counsel from other practitioners and professional as they have deemed necessary, appropriate, and desired.

h. Confidentiality

i. Neither Party will use, copy, adapt, alter, or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.

i. Notices

i. Any notice which may be given by a Party under this Agreement shall be deemed to have been duly delivered if delivered by hand, first class post, facsimile transmission, or electronic mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party.

j. Descriptive Headings

i. The descriptive headings used herein are for convenience of reference only and they are not intended to have any affect whatsoever in determining the rights or obligations of the parties.

k. Construction

i. The pronouns used herein shall include, where appropriate, either gender or both, singular and plural.

l. Binding effect

i. The covenants, obligations, and conditions herein contained shall be binding and inure to the benefit of the heirs, legal representative, and assigns of the parties hereto.

m. Severability

i. If any provision of this Agreement or the application thereof shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Agreement nor the application of the provision to other persons, entities, or circumstances shall be affected thereby, but instead shall be enforced to the maximum extent permitted by law.

n. Agreement

i. This agreement shall be binding upon the Buyer's heirs, executors, and personal representatives. The Buyer hereby certifies that by signing this agreement, he/she has read and fully understands the forgoing agreement and also certifies that he/she is of legal age, sound mind, and has entered into this agreement of his/her own free will.

o. Controlling Law

i. This agreement shall be interpreted and enforced in accordance with the laws of the State of Colorado, without regard to its choice of law provision. In the event any provision of this agreement should be determined to be invalid or unenforceable, such determination shall not affect the remaining terms hereof. In the event any suit is brought in connection herewith, the venue of such action shall be El Paso County in the State of Colorado.

p. Miscellaneous

i. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

ii. The Service Provider maintains the right to assign or transfer all or any part of its rights under this Agreement without the consent of the Buyer.

1) This Agreement may not be amended for any other reason without the prior written agreement of both Parties excluding the Appendix A which will outline the actual services to be purchased by the Buyer. The Appendix A will be executed contemporarily at the same time and place as this agreement. Any future Appendix must be in writing and executed by both parties.

iii. This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations, or understandings with respect hereto. Additions in the Appendixes may be executed at a later time but must be written form and executed by both parties to be binding.

iv. Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion, or industrial dispute. If such delay or failure continues for at least 7 days, the Non-delayed Party shall be entitled to terminate this Agreement by notice in writing to the other.

q. Marketing

i. Advertising and/or promotion resources of the Servicer Provider are expended at the sole discretion of the Service Provider. The Buyer, depending on the package service they purchase will be given complimentary sessions with at least one of the staff of the Service Provider to discuss marketing strategies. All other marketing consulting will be paid for at an hourly rate of 50 dollars an hour.

ii. Service provider maintains the right to use up to 20% of any and all Materials and Deliverables of the Buyer to help promote the Service Provider's services. This is includes audio, text, the name and/or likeness of the Buyer.

r. Service provider as a company

i. The Service Provider is an e-publishing company and distribution point for intangible e-products including audiobooks, e-books, etc. The Service Provider is not a marketing and/or law firm and should not be expected to function as those professionals and/or servicer providers.

s. Services actually purchased by the buyer

i. The services that will actually be ordered by the Buyer will be outlined in Appendix A to this agreement. If the services relating to the individual sections of this contract are not ordered by the Buyer the applicable sections of those services in this contract to do apply to this Buyer.

t.Right to refuse service

i. The Service Provider reserves the right to refuse service to any Buyer. Should the Buyer agree to these Terms and Conditions and at a later time the Service Provider chooses to refuse service, any fees paid by the Buyer to produce a product offered by the Service Provider will be returned at the Service Provider’s discretion.


Appendix A

This Appendix A represents the actual services that can be purchased by the Buyer from the Servicer Provider.

Fee calculations:

1. eBook formatting Service-

a. 150 dollars ($150.00) per book for limited formatting

i. Fee includes

1. any book that is 100% text (no images and/or graphics)

ii. Fee does not include

1. any book with images and/or graphics as deemed by the Service Provider

2. any book which requires extensive formatting as deemed by the Service Provider

b. 250 dollars ($250.00) per book for full formatting

i. Fee includes all formatting required for eBook conversion

c. Customized quote

i. A customized quote for books which contain extensive images, graphics, or special formatting will be provided by the Service Provider to the Buyer

d. eBook formatting only with no distribution except for inclusion in the Service Provider's owned network (excludes any partner or agent networks) is available at the above rates in addition to a 50 dollar ($50.00) service fee.
i. Fee includes eBook conversion and distribution account setup (if desired by the Buyer).
2. Audiobook Production Service

a. Rate

i. Each 60 minutes: 125 dollars ($125.00)

ii. 0-8 additional minutes: zero (0) dollars ($0.00)

iii. 9-23 additional minutes: 30 dollars ($30.00)

iv. 24-38 additional minutes: 55 dollars ($55.00)

v. 39-53 additional minutes: 80 dollars ($80.00)

vi. 54 or more additional minutes: 125 dollars ($125.00)

b. Estimated Price

i. The Estimated Price is calculated by dividing the average Word Per Minute (WPM) speaking rate of the voice talent into the Word Count

Ex: Word Count= 45,000, Average WPM= 150

Estimated Price = 45,000 / 150 = 300 minutes / 60 = 5 hours
5 hours * $125.00 = $625.00

c. Final Price

i. The Final Price is calculated by multiplying the Final Audio Length by the Rate as listed above

Ex: Final Audio Length = 4 hours 27 minutes

4 hours * $125.00 = $500.00

27 additional minutes = $55.00

Final Price= $555.00

d. Fee includes any Pick-ups

e. Fee does not include any Music Licensing Fees for bed music

f. Fee does not include Script Changes

i. Script changes will be charged at 50 dollars ($50.00) per hour

3. Serialized Audiobook Service

a. Included with the fee for Audiobook Production service

b. If no Audiobook Production Service was purchased, rate is 50 dollars ($50.00) per hour for producing the episodic audio files

4. Marketing Consultation Service

a. 50 dollars ($50.00) per hour

5. Executive Podcasting Service

a. 50 dollars ($50.00) per month

i. Fee includes production of all podcast files, hosting fees, creation of introduction and outroduction clips

6. Audio File Mastering Service

a. 50 dollars ($50.00) per hour

7. Studio Recording Service

a. 50 dollars ($50.00) per hour


BY CLICKING THE “I ACCEPT” BUTTON FOR THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT SELECT THE “I ACCEPT” BUTTON AND YOU MAY NOT USE THE SERVICES.