SERVICE AGREEMENT
Audiobook Service Agreement
AUDIOBOOK SERVICE AGREEMENT
The partnership between Amazon and Gamboa Press Studio
Version 1.0 (03.09.11)
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This Audiobook Service Agreement (“Agreement”) is entered into effective as of the date of the later of the signature dates below by and between Customer’s full-name (“Client”) and GAMBOA PRESS STUDIO (“Producer”), and applies to the performance of audio Audiobook services by Producer for Client in connection with an audiobook Client creating through the audiobook production service and rights marketplace available at www.acx.com (“ACX”).
1. Engagement to Perform Audiobook.
Client engages Producer to perform an oral Audiobook of the work, Book title (the “Work”), in the English language (such raw recorded oral Audiobook, the “Audiobook”) for purposes of the production of a finished audiobook of the Work (“Audiobook”) for commercial sale and distribution.
2. Production Schedule and Guidelines.
The producer will appear and perform the Audiobook on the date(s) and time(s), and at the location(s), designated by the Client, including four follow-up sessions to re-record all or part of the Audiobook, and such number of additional follow up sessions as Client may request to the extent Client or Rights Holder determines that further revisions are necessary.
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The producer will perform the Audiobook in accordance with the ACX Rules for Producers set forth in the ACX Rules for Audiobook Production, the current version of which is attached to this Agreement as Exhibit A. Client may hire third parties to assist in the production and recording of the Audiobook and the Audiobook, including editors, studio engineers, and other Producers or vocal performers.
3. Client Approval.
The client will have the right to approve or reject the Audiobook at any stage of production and upon completion. Client agrees to work with Producer in good faith in connection with Client’s right of approval, including making timely and constructive suggestions to help Producer deliver a performance of the Audiobook to Client’s specifications.
4. Payment Terms.
As full consideration for all services performed by Producer under this Agreement, and provided Producer is not in breach of this Agreement, the Client will pay the Producer service charge of finished audio within 30 days of the Producer’s completion of the Audiobook and Client’s final approval thereof.
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If Producer quits at any time before the Audiobook is produced or fails to meet the specifications set forth in the ACX Rules for Producers, Producer will not receive any payment. Unless specified otherwise in writing by the Client, The producer is responsible for all of the Producer’s own costs and expenses in performing the Services.
The aforementioned service charge shall be paid upon the execution of this agreement. Should the author make a payment in any currency other than USD, the author shall pay any difference between the conversion of the amount paid as converted into USD at the prevailing conversion rate (USD equivalent) compared to the USD purchase price.
5. Termination.
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a. By Producer.
The Producer may terminate this Agreement (i) if Client fails to provide Producer a manuscript of the Work within 10 days prior to the first scheduled recording date, or (ii) by giving Client at least 14 days written notice prior to the first scheduled recording date. In such case, the Client will owe no payment to Producer.
b. By Client.
i. Termination with no Termination Fee. This Agreement shall commence in 30 business days and remain in effect until the service is completed. This Agreement may be extended by mutual written consent of both parties. If either party seeks to terminate this Agreement, the terminating party must provide 14 business days’ notice to the other party.
ii. Termination with Termination Fee. In addition to the rights of Client to terminate this Agreement without payment of fees pursuant to Section 5(b)(i), Client may terminate this Agreement by the provision of written notice of termination to Producer if Client is not satisfied with the final completed recording of the Audiobook, subject to payment of a termination fee equal to 50% of the cost of Producer’s services using the per hourly fee set forth in Section 4 and Client’s estimate of the total hours of finished audio for the completed Audiobook.
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6. Ownership.
Producer understands and agrees that all right, title, and interest in the Work is owned and controlled by Customer’s full-name(“Rights Holder”). Producer further understands and agrees that the Audiobook has been specially ordered and commissioned by Client on behalf of Rights Holder.
Producer agrees that all work product produced by Producer while performing the Services, including any unfinished audio recording, the Audiobook, and the Audiobook (collectively, the “Work Product”) is a “work made for hire” to the full extent permitted by law, with all copyrights in the Work Product owned by Rights Holder. Producer agrees that all rights, title, and interests in and to such Work Product will be owned, immediately upon creation, exclusively by Rights Holder.
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a. To the extent that any Work Product of Producer would not qualify as a work made for hire under applicable law, Producer hereby assigns to Rights Holder all right, title and interest Producer may have in and to such Work Product, including all copyright, rights of authorship or rights of publicity in the Work.
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b. Producer will execute any additional documents required by Client or Rights Holder to establish such ownership or assignment to Rights Holder. In the event of any termination of this Agreement prior to the Producer’s completion of the Audiobook, the provisions of this Agreement regarding ownership will apply with respect to any portion of the Services that might have been completed prior to such termination.
7. Right of Publicity Grant.
Producer agrees that Client, Rights Holder, and Audible will have the right to use Producer’s name, likeness, and biographical information in marketing for the Audiobook in any media without time or use restrictions. The producer will, promptly on request, provide the Client an image and brief written biography suitable for use by the Client, Rights Holder, and Audible in the marketing of the Audiobook.
8. Representations and Warranties.
Producer represents and warrants that (a) Producer is free to enter into the Agreement and to perform Producers obligations as required by this Agreement, (b) Producer has made no agreements or commitments that prevent or interfere with the performance of Producer’s obligations under the Agreement, and (c) the vocal performance in the Audiobook will be original and the Audiobook itself (without regard to the content thereof) will not infringe upon or violate the rights of privacy or publicity or any other statutory or common law rights of any third party.
Producer warrants, for the benefit of Client, Rights Holder, and Audible, that Producer has all rights required to perform the Audiobook pursuant to the Agreement and for Rights Holder and Audible to make the Audiobook available for production and distribution.
9. No Obligation to Use Producer’s Services.
Nothing in this Agreement will require Client to use Producers Services or to produce or exploit the Audiobook or to make any use whatsoever of the Work Product. The client will have the absolute right to elect not to use Producer’s Services pursuant to this Section 9.
Without limiting any rights or remedies, at law or in equity, that may otherwise be available to Client and without prejudice to such rights and remedies, in the event Client does not wish to use Producers Services for any reason, Client only continues obligation to Producer will be payment of fees owed to Producer under Section 4 for Services completed and approved by Client which, when paid, will be deemed a payment in full of all compensation payable to Producer under this Agreement. Thereafter, Client will be released and discharged from any and all further obligations that Client may have to Producer.
10. Producer’s Remedies.
The rights and remedies of Producer in the event of any breach by Client of this Agreement will be cumulative and the exercise of one will not preclude the exercise of any other remedy for the same or any other default; provided, however, that in any event, Producers remedies will be limited to Producers right to recover damages, if any, in an action at law.
Producer unconditionally waives any right or remedy in equity, including any right to terminate this Agreement, or to rescind Rights Holders right, title, and interest in and to any Work Product created by Producer hereunder or the results and proceeds of Producers Services or any other rights granted to Client or Rights Holder hereunder, or to enjoin or restrain the distribution of the Audiobook or the use, publication or dissemination of any advertising or publicity in connection therewith.
11. Independent Contractor.
Producer will provide services to Client on an independent contractor basis. The producer is solely responsible for the payment of all taxes applicable to
all sums paid to the Producer hereunder. The producer will have no authority to bind Client, Rights Holder, or Audible in any way or to make any commitments to anyone on behalf of Client, Rights Holder, or Audible without their prior written consent.
12. Assignment.
The Client 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 the Client of any of the Client’s obligations under the Agreement. Producer’s services are of a unique, extraordinary, and personal character which gives them a peculiar value, and therefore may not be assigned by Producer. Any purported assignment by Producer will be null and void.
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13. General.
This Agreement, together with the attached Exhibit, constitutes the entire understanding between Client and Producer with respect to the subject matter hereof, supersedes all other agreements and understandings between the parties, and may not be modified or amended, except by a written signature by both parties.
a. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. A waiver by either party of any term or condition of this Agreement in any instance will not be deemed a later waiver of such term or condition, or of any later breach thereof, or as a waiver of any other term condition in this Agreement.
b. This Agreement, and all rights and duties of the parties, will be governed by and enforced in accordance with the laws of the State of New York, excluding any conflict of Laws provisions. Except to the extent that both Client and Producer are ACX participants and the ACX Dispute Resolution Procedures set forth in the current version of the ACX Account Holder Agreement may otherwise specifically provide, all disputes with respect to matters under this Agreement or with respect to the Agreement will be subject to the exclusive venue and jurisdiction of the courts of the State of New York, located in New York City.
c. All notices that either party is required or desires to serve on the other will be in writing and given either by personal delivery or by registered mail (postage prepaid) to the other party at the address on this signature page below, or such other address as either party may designate from time to time in writing. The date of personal delivery, or the date that is 24 hours following the date of registered mailing, as applicable, will be deemed the date of service or delivery. This Agreement may be executed by facsimile and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will constitute the same instrument.:
i. The failure of Gamboa Press Studio to insist upon strict performance of any of the terms, conditions, and covenants hereof shall not be deemed a relinquishment or waiver of the rights or remedy that it may have nor shall it be construed as a waiver of any subsequent breach or default of the terms, conditions, and covenants and shall continue to be in full force and effect.
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iii. No waiver by Gamboa Press Studio or any of its rights under this agreement shall be deemed to be made unless expressed in writing and signed by the proprietor of Gamboa Press Studio
iii. Gamboa Press Studio commits to maintaining the privacy of the client’s personally identifiable information with regard to its collection, access, use, storage, disposal, and disclosure and will comply with all applicable privacy and data protection laws, as well as all other applicable regulations and directives.
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*Intentions for cancellation and/or refund appeals should be requested through Gamboa Press Finance Team (finance@gamboapress.com).
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Disclaimer: This service agreement represents a legally binding contract between, Gamboa Press Studio and its client. Amendments are expressed in writing and are enforced when mutually agreed upon by the parties involved. The client below the legal age of eighteen (18) is required a parent or a guardian’s co-signature to be affixed in the space provided. If you are accomplishing this electronically, please click on the space provided and do as instructed.
EFREN M. GAMBOA
Chief Executive Officer
5206 E County Road 73
Midland, Texas 79705
+1 (888) 800-0717