These terms and conditions ("Terms") apply to all sales and services by Spark Creative, LLC ("Spark") to you ("Client"). These terms and conditions are subject to change at any time at the sole discretion of Spark:
- Payment Terms: Unless otherwise agreed in a writing signed by Spark, twenty-five percent (25%) of the proposed total, as defined in the Project Proposal, is required prior to the start of any work as a non-refundable deposit. All subsequent invoices must be paid in accordance with Spark's normal terms of sale, which are net fifteen (15) days from invoice date and payable in USD only, via check, credit card, or ACH transfer. All past due amounts are subject to a one-and-a-half percent (1.5%) monthly financing charge, or the highest interest rate permitted by law, whichever is lower. All drafts dishonored for any reason shall be assessed a thirty-dollar ($30.00) service charge.
- Default: Client shall be in default under these terms if Client defaults on payment of any installment, invoice, bill, or any other indebtedness or obligation now or hereafter owed by Client to Spark.
- Spark Remedies: Upon default or any time thereafter, Spark may in its sole discretion, in addition to any other remedy available to Spark at law or in equity, at its option and without notice to Client declare immediately due and payable all outstanding invoices under this or any other contract and demand or, without demand, sue for amounts then due or thereafter accruing under the invoice or under any other invoice, bill, or other document evidencing Client's indebtedness to Spark.
- Term and Termination: Either party may agree to terminate the relationship at any time prior to the completion of the services. Any cancellation shall require thirty (30) days' notice and be made in writing ("Cancellation Period"). Any work performed by Spark during the Cancellation Period shall be billed at a rate of $65/hour. Client is responsible for any unbilled and unpaid work through the termination date at a rate of $65/hour.
- Intellectual Property Rights: Spark shall own all intellectual property produced under any contract or proposal with Client until the Client accepts and pays for all deliverables under any contract or proposal. Once paid for, all deliverables are the property of Client and shall be deemed a "work for hire."
Client grants to Spark the right to use its name and relationship to Spark in promotional materials for the purpose of marketing Spark's services and products. Client grants the right to use its name and image in all forms and media, including composite or modified representations, but reserves the right to inspect or approve versions of its image used for publication or the written copy that may be used in connection with such images upon request.
- Force Majeure: Spark shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, acts of war, fire, insurrection, strikes, lock-outs, or other serious labor disputes, government orders or mandates, riots, earthquakes, floods, explosions, or other acts of nature.
- Limitation of Liability: The Client acknowledges and agrees that Spark will not be liable for any losses or damages, whether indirect, incidental, special, or consequential, in profits, products, or services, irrespective of whether or not the Client has been advised or otherwise might have anticipated the possibility of such loss or damage. Notwithstanding any provision in these Terms or under any proposal or contract, the cumulative liability of Spark for all claims whatsoever related to or arising out of any proposal or contract including any cause of action sounding in contract, tort, or negligence shall not exceed the total amount paid to Spark under any proposal or contract.
- No Guarantee: The client acknowledges and agrees that Spark cannot guarantee the results or effectiveness of any of the services rendered or to be rendered. Rather, services shall be executed in a professional manner and in accordance with good industry practice. Best efforts will be used but no results are promised.
- No Warranties by Spark: SPARK MAKES NO WARRANTIES EXPRESS OR IMPLIED OF ANY KIND WITH REGARD TO THE PRODUCTS OR SERVICES. SPARK DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Confidential and Proprietary Information: Each party acknowledges that all non-public information, disclosed as a result of performance of these terms and conditions, whether tangible or intangible, shall be deemed "Confidential and Proprietary Information." Each party agrees not to disclose or use such information except in connection with these terms and conditions or as required by law. Each party agrees to notify the other part of any subpoena or court order compelling disclosure of information.
- Indemnification: Client agrees to indemnify and hold Spark and its officers, directors, servants, employees, agents, and advisors harmless from and against any and all claims, damages, costs, expenses (including, but not limited to, reasonable attorneys' fees and costs) or liabilities that may result, in whole or in part, from any third party using the products or services provided under these Terms. Any defense provided hereunder shall be by counsel of Spark's choice.
- Waiver: No delay or omission by Spark to exercise any right or power shall impair any such right or power or be construed to be a waiver thereof. A waiver by Spark of any term, condition, or agreement to be performed by Client or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other term, condition, or agreement herein contained. No change, waiver, or discharge hereof shall be valid unless presented in writing to Spark and signed by an authorized representative of Spark.
- Severability: If any section, term, condition, or portion of these Terms shall be found to be illegal or void as being against public policy, it shall be stricken, and the remainder of this document shall stand as the original.
- Applicable Law: Terms shall be construed and enforced in accordance with the laws of the State of Ohio without regard to the conflicts of law provisions thereof. All claims, actions, disputes, controversies, or suits shall be litigated exclusively in the federal courts in the Northern District of Ohio, or the state or local courts located in the County of Lorain, in the state of Ohio. Each party specifically consents to service of process by and the jurisdiction of and venue in those courts and Client, if not a resident of the United States, hereby appoints the Secretary of State of Ohio as its agent for service of process in the United States.
- Binding Agreement: The parties intend these Terms to constitute the entire agreement of the parties with respect to the subject matter hereof and thereof, and the Terms are binding on the parties hereto, their successors, and permitted assigns. No course of prior dealing or usage of trade shall be relevant to amend or interpret these Terms. These Terms may not be changed modified or amended except by an instrument in writing signed by both Spark and Client.