This INDEPENDENT CONTRACTOR/LICENSE AGREEMENT and the documents referenced herein ("Agreement") is a legal agreement between Associated Content Inc., a Delaware corporation, with an address at 88 Steele Street, Suite 400, Denver, CO, United States, 80206 ("Company"), and you, the "Contributor" identified in the application form previously submitted by you and accepted by Company in connection herewith ("Application"), which is incorporated herein by reference. This Agreement specifies the terms and conditions governing the relationship between Company and the approved Contributor, whereby Contributor, as an independent contractor of Company, has provided or will provide certain Works (as defined in Section 1, below) for which Company shall have an option to acquire a worldwide, perpetual, fully-paid up, royalty-free, transferable right and license to edit, publish and use the Work (as further described in Section 2(d), below).
BY CLICKING THE "I ACCEPT" BUTTON AT THE BOTTOM OF THIS AGREEMENT AND/OR BY OTHERWISE PERFORMING SERVICES AND SUBMITTING WORKS TO COMPANY VIA THIS INTERACTIVE COMPUTER SERVICE AND WEB SITE, CONTRIBUTOR HEREBY EXPRESSLY AGREES AND CONSENTS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS MODIFIED FROM TIME TO TIME BY COMPANY, AND ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT CONTRIBUTOR IS AT LEAST EIGHTEEN (18) YEARS OF AGE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON BELOW.
NOW THEREFORE, in consideration of the mutual promises and covenants herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below: "IP Rights" means all forms of intellectual property rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, including all right, title and interest arising under United States or foreign common or statutory law in and to all: (a) patents and all filed, pending or potential applications for patents, including any patent disclosure, reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (b) trade secret rights, know-how, technical information, rights in databases, rights to confidential or other proprietary information and equivalent rights; (c) copyrights, copyright registrations, design registrations and applications therefor, moral rights, other literary property or authors' rights, whether or not protected by copyright or as a mask work; and (d) proprietary indicia, trademarks, service marks, trade names, trade dress, logos, symbols, domain names, logos and/or brand names and all goodwill associated therewith.
"Moral Rights" means any rights to claim authorship of any Work, to object to or prevent any modification of any Work, to withdraw from circulation or control the publication or distribution of any Work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a "moral right."
"Related Parties" means any owner, parent, partner, affiliate, subsidiary, supplier, subcontractor, shareholder, director, officer, hired or leased employee or worker, agent, representative or permitted assignee or successor of Company or Contributor, as the case may be and as context requires.
"Taxes" means any sales, value added, use and/or other applicable taxes, as well as any duties or other charges imposed on or related to the provision of the Services or the payments provided under this Agreement.
"Work" means any deliverables, technology, designs, articles, written expressions, materials, content, graphics, data, information, images, photographs, art, illustrations, animations, video, audio, or audio/visual work, music, text, and/or any works of authorship that Contributor (or Contributor's authorized employees, subcontractors or agents) may conceive of, create or develop prior to or in the course of performing the Services for Company, whether or not eligible for patent, copyright, trademark, trade secret, or other legal protection.
2. Services; Option to License Works.
(a) Services. During the term of this Agreement, Contributor shall create and submit to Company from time to time, for Company's consideration, original, thought provoking, multi-format Works ("Services"). Contributor's Services may also consist of submitting to Company, during the term of this Agreement and for Company's consideration, Works that were conceived of, created or developed by Contributor prior to the effective date of this Agreement.
(b) Submission Procedure. The Works shall be submitted for Company's consideration via this interactive computer service and web site using Company's proprietary computer program and software application known as the "Associated Content Publishing Technologies," pursuant to the terms and conditions set forth in the End User License Agreement, which is incorporated herein by reference. The frequency of the submissions by Contributor shall be determined at Contributor's sole discretion.
(c) Option. Contributor hereby grants Company an option to acquire a worldwide, perpetual, fully-paid up, royalty-free, transferable right and license to edit, publish and use any Works (as further described in Section 2(d), below) submitted by or on behalf of Contributor to Company hereunder ("Option"). In connection with such Option, Contributor hereby grants Company a fully-paid up, royalty-free right and license to reproduce, display, distribute, perform, transmit, disclose and use such Works for learning about, evaluating, and considering such Works. Upon receipt of any Work submitted by or on behalf of Contributor hereunder, Company shall have five (5) business days (or such other time period as the parties may mutually agree) within which to notify Contributor (which notice may be in e-mail form) of its intention to exercise or decline its Option ("Option Period"), provided that if Company is unable to notify Contributor due to an error in the contact information provided by Contributor, the Option Period shall be extended until Company, using good faith efforts, is actually able to contact Contributor. Upon receipt of Company's notice to exercise its Option, Contributor shall offer Company the opportunity to acquire a worldwide, perpetual, fully-paid up, royalty-free, transferable right and license to edit, publish, disclose and use the submitted Work (as further described in Section 2(d), below) ("Rights Grant"), at either (i) a one-time price to be mutually agreed upon between Company and Contributor, or (ii) no cost to Company but with proper attribution to Contributor, Contributor acknowledging that such Rights Grant represents a unique and valuable online publishing opportunity for Contributor (in either such case, the "Rights Grant Consideration"). The type of Rights Grant Consideration shall be designated and identified in the Application submitted by Contributor in connection with each submitted Work. If within five (5) business days thereafter (or such longer period of time as the parties may mutually agree), the parties are unable in good faith to mutually agree upon the Rights Grant Consideration, no Rights Grant shall be deemed to have occurred and Contributor shall be free to dispose of the submitted Work elsewhere without restriction hereunder. This Agreement and any writing (which may be in e-mail form) regarding the Rights Grant Consideration shall be construed as consistent with one another whenever possible; provided, however, that notwithstanding anything herein to the contrary, in the event of any conflict between any of the terms and conditions of this Agreement, on the one hand, and any such writing, on the other hand, this Agreement shall prevail, unless the conflicting or additional term of such writing expressly states otherwise and is executed by Contributor and a duly authorized officer of Company.
(d) License Grant. Upon any Rights Grant, Contributor hereby irrevocably (i) grants to Company a worldwide, perpetual, fully-paid up, royalty-free, transferable right and license, with right to sublicense, to reproduce, publicly display, distribute, and perform, transmit, edit, modify, create derivatives works of, publish, sell, exploit, use, and dispose of such Work for any purpose and in all forms and all media whether now known or to become known in the future, the right to retain all revenue and income derived therefrom, and any and all other related rights of whatever kind or nature; and (ii) waives and agrees never to assert any and all Moral Rights Contributor may have in or with respect to any such Work in connection with Company's use thereof, even after termination of this Agreement (hereinafter, the grants described in subsections (i) and (ii) above are referred to as the "License"). The License shall be either (A) exclusive, or (B) non-exclusive, as designated and identified in the Application submitted by Contributor in connection with such Work.
(e) Further Cooperation. Upon any Rights Grant, Contributor, at the request of Company or its counsel, and at no additional charge, shall execute, acknowledge and deliver any and all documents or instruments that Company may determine necessary, in its reasonable discretion, to carry out the intent of this Agreement and the License; provided, however, this Agreement and the License shall be effective regardless of whether any such additional documents are executed. In the event Company is unable for any reason, after reasonable effort, to secure Contributor's signature on any document needed in connection with the actions or grants specified herein, Grantor hereby irrevocably designates and appoints Company and its duly authorized officers and agents as his agent and attorney in fact, which appointment is coupled with an interest, to act for and in Contributor's behalf to execute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this Agreement and the License with the same legal force and effect as if executed by Contributor.
(f) No Obligation to Use Works; Independent Development. Company's exercise of any of the rights granted hereunder shall be at Company's sole and absolute discretion. Upon and subsequent to any Rights Grant, Company may choose to use none, some, or all of the subject Works, to transfer such rights to a third party, and/or discontinue any use of such Works in Company's sole discretion, as it sees fit and for any purpose. Nothing in this Agreement will be construed as restricting Company's ability to independently acquire, license, create, develop or distribute for itself, or have others independently acquire, license, create, develop or distribute for Company, any materials, works, products, services, or technology similar to the Works and/or that perform the same or similar functions as the Works, or to market and distribute such similar materials, works, products, services, or technology in addition to, or in lieu of, the Works.
3. Term and Termination. (a) Term. This Agreement shall be effective upon clicking the "I ACCEPT" and "I CONFIRM" buttons at the end of this Agreement and shall continue in force and effect until terminated by operation of law or by the acts of either of the parties in accordance with the terms of this Agreement.
(b) Termination. A party (as specified below) shall have the right to terminate this Agreement in any of the following events: (a) immediately by Company upon the death of Contributor or any illness or injury that materially prevents Contributor from performing the Services; or (b) by either party, without cause or reason, upon notice (which notice may be in e-mail form) to the other party. The foregoing termination rights are in addition to any termination rights that may be provided elsewhere in this Agreement. Company shall have no liability for such termination, except for any payment due and owing for any agreed upon Rights Grant hereunder. Notwithstanding anything herein to the contrary, Contributor shall only be entitled to terminate the License granted with respect to the subject Work following failure by Company to make payment of any undisputed Rights Grant Consideration consisting of monetary compensation for such Work when due, provided that such failure is not cured within thirty (30) days after written notice thereof from Contributor, which notice shall describe the failure to pay in reasonable detail and shall specifically state that Contributor may terminate the License with respect to the subject Work granted herein pursuant to this Section 3(b) if left uncured. In the event of any uncured material breach other than that described in the immediately preceding sentence, Contributor shall be entitled to pursue a claim for damages but the License granted pursuant to this Agreement prior to termination shall survive and continue in full force and effect, subject to the surviving terms and conditions of this Agreement.
(c) Survival. Any termination of this Agreement shall be without prejudice to the rights of either party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement. The following provisions, in addition to any other provision of this Agreement that by its nature is intended to survive, shall survive any termination of this Agreement: Sections 1(d) (License Grant), 1(e) (Further Cooperation), 1(f) (No Obligation to Use Works; Independent Development), 3(b)(regarding the effect of termination), 7 (Representations and Warranties), 8 (Indemnification; Limitation of Liability); and 9 - 17.
4. Location, Means for Performing Services. Contributor shall perform the Services at such locations as may be determined by Contributor. Contributor's means and methods for performing the Services must comply with the terms and conditions of this Agreement; however, Contributor shall determine the specific means and methods of performing the Services. In performing the Services, Contributor agrees to provide Contributor's own equipment, tools and other materials at Contributor's own expense and Contributor shall be solely responsible for all costs and expenses incurred in connection with the performance of its obligations hereunder. 5. Payment; Taxes.
(a) Sole Compensation. Contributor's sole compensation under the terms of this Agreement shall consist of the Rights Grant Consideration mutually agreed upon between Company and Contributor for each respective Rights Grant for the subject Work. CONTRIBUTOR HAS NO EXPECTATION AND ACKNOWLEDGES THAT HE/SHE HAS RECEIVED NO ASSURANCES FROM COMPANY THAT (I) CONTRIBUTOR'S BUSINESS RELATIONSHIP WITH COMPANY WILL CONTINUE FOR ANY SPECIFIED TIME, (II) CONTRIBUTOR WILL OBTAIN ANY ANTICIPATED AMOUNTS OF PROFITS IN CONNECTION WITH THIS AGREEMENT, OR (III) CONTRIBUTOR WILL RECOUP ANY EXPENDITURES MADE IN FULFILLMENT OF CONTRIBUTOR'S OBLIGATIONS UNDER THIS AGREEMENT. COMPANY SHALL INCUR NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES OR EXPENSES OF ANY KIND SUFFERED OR INCURRED BY CONTRIBUTOR ARISING FROM OR INCIDENT TO ANY TERMINATION OF THIS AGREEMENT BY COMPANY WHETHER OR NOT COMPANY IS AWARE OF SUCH DAMAGES, LOSSES OR EXPENSES. (b) Payment Terms. All undisputed Rights Grant Consideration consisting of monetary compensation that is due and owing to Contributor shall be paid within two (2) business weeks of the effective date on which the applicable Rights Grant occurred. Payments shall be made in U.S. Dollars via check or money transfer to Contributor's designated PayPal� account (which requires that Contributor establish an account and may require that Contributor pay a service fee, which Contributor shall do at its sole expense). An additional period of two (2) business days is granted for PayPal� to process each payment transaction.
(c) Taxes. All amounts payable to Contributor by Company hereunder are exclusive of any Taxes, not including taxes on Company's net income. Contributor shall pay when due, and shall defend, indemnify and hold Company and its Related Parties harmless from and against any and all Taxes and shall remain liable for payment of all such Taxes. In the event of an assessment against Company for Taxes by any taxing authority or jurisdiction, Contributor agrees to reimburse Company within thirty (30) days of the date of invoice from Company issued in respect thereof for all such Taxes, as well as any applicable interest and/or penalties found to be due and payable. 6. Independent Contributor Status.
(a) General. In performing the Services, Company and Contributor acknowledge and agree that Contributor shall be Company's independent contractor rather than its employee. The parties understand and agree that: (i) Contributor is not required to perform work exclusively for Company and that Contributor is free to contract to provide services to other companies during the term of this Agreement; (ii) Company will not provide Contributor any business registrations or licenses that may be required; (iii) Company will not dictate the number of hours Contributor is required to work; (iv) Company will not combine business operations with Contributor; (v) Contributor will be paid as set forth herein and will not be paid a salary or hourly rate; and (vi) Company will pay the Contributor only in the name appearing in the Application. (b) Taxes. No payroll or employment taxes of any kind shall be withheld or paid with respect to payments to Contributor. Rather, Contributor is solely responsible to report as income all compensation received by Contributor from Company hereunder, and for paying all payroll and employment taxes including, but not limited to, FICA, FUTA, federal personal income tax, state personal income tax, state disability insurance tax, state unemployment insurance tax, and state workers' compensation insurance taxes. (c) No Workers' Compensation / Unemployment Compensation. Company shall not obtain any workers' compensation or unemployment compensation insurance on account of Contributor or Contributor's authorized employees, subcontractors or subcontractors' employees, if any. Rather, Contributor agrees to provide workers' compensation and unemployment compensation insurance coverage for Contributor's own employees and shall ensure that all such subcontractors provide workers' compensation and unemployment compensation insurance coverage for their employees.
(d) No Other Benefits. Company shall not provide to Contributor (or to Contributor's authorized employees, subcontractors or subcontractors' employees, if any) any benefits, including but not limited to holiday, vacation, paid time off, or sick pay; social security; workers' compensation; unemployment compensation; Medicare; unemployment or disability insurance; health and welfare benefits; profit sharing; 401(k) or any employee stock option or stock purchase plans. CONTRIBUTOR HEREBY WAIVES AND RELEASES ANY AND ALL RIGHTS TO ANY OF THE FOREGOING BENEFITS EVEN IF CONTRIBUTOR IS LATER RECLASSIFIED BY ANY COURT OF COMPETENT JURISDICTION TO BE A COMMON LAW EMPLOYEE OF COMPANY.
(e) Miscellaneous. Contributor shall exercise independent judgment regarding the manner in which Contributor performs the Services while exercising reasonable best efforts to comply satisfactorily with the terms of this Agreement. Contributor agrees to comply with all ordinances, laws, orders, rules, and regulations related and/or applicable to the Services. Contributor shall have no right or authority to assume or create any obligation of any kind or to make any representation or warranty on behalf of Company, whether express or implied, or to bind Company in any respect. This Agreement does not create an association, joint venture, or partnership between the parties nor does it impose any partnership liability upon either party.
7. Representations and Warranties. Contributor hereby represents, warrants and covenants to Company that: (a) if Contributor is an individual, Contributor is over the age of eighteen (18); (b) Contributor shall use its reasonable best efforts to perform the Services in an ethical, diligent and professional manner consistent with highest industry standards and otherwise in accordance with the terms and conditions of this Agreement; (c) Contributor is the owner or the licensee of all IP Rights relating to the Works and has full legal power and authority to enter into and perform this Agreement in accordance with its terms, including without limitation, the full right and power to grant to Company the rights granted in the Works, as described herein, without the consent of any governmental body, any regulatory authority, or any third party; (d) the Works, and Company's use thereof, does not and shall not violate or in any way infringe upon the rights of third parties, including without limitation, any IP Rights, rights of publicity or privacy rights of any third party; (e) the Services will not be in violation of any applicable law, rule, or regulation, and Contributor will have obtained all permits required to comply with such laws and regulations; (f) the Works are free and clear of all claims, liens, encumbrances and the like of any nature whatsoever, and Contributor has not made a previous assignment, transfer, license grant or agreement in conflict herewith or constituting a present or future assignment, license grant or encumbrance with respect to any Works in conflict herewith; (g) the Works shall not contain any unlawful, threatening, abusive, false, libelous, defamatory, obscene, pornographic, profane, or otherwise infringing or objectionable content or material of any kind; (h) Contributor has provided and will continue to provide true, accurate and complete information to Company in connection with this Agreement and the Application, including, without limitation, Contributor's legal name, tax identification information, address and other requested contact information; (i) the execution, delivery and performance of this Agreement does not conflict with, constitute a breach of, or in any way violate any arrangement, understanding or agreement to which Contributor is a party or by which Contributor is bound; and (j) the Works shall not include any software code or other materials subject to non-negotiable licenses, including without limitation, "open source" or "freeware" software licenses, or any other stipulations or restrictions requiring that the Works and/or any material combined or distributed with such Works be (i) disclosed or distributed in source code form, (ii) licensed for the purpose of making derivative works, or (iii) re-distributable at no charge. Contributor further represents, warrants and covenants to Company that no claim, whether or not embodied in an action past or present, of any infringement, of any conflict with, or of any violation of any IP Right or similar right, has been made or is pending or threatened against Contributor or Contributor's Related Parties relative to the Works, nor to the best of Contributor's knowledge, are there any valid grounds for any claim challenging the ownership, validity, or enforceability of the Works or any IP Rights therein.
8. Indemnification; Limitation of Liability. (a) Indemnification. Contributor shall defend, indemnify and hold harmless Company and its Related Parties and customers (collectively, the "Indemnified Parties"), from and against all claims, demands, suits, losses, damages, costs, awards, judgments and expenses (including the costs of investigation and defense and reasonable attorneys' fees), regardless of the form of action, including, without limitation, those based on, arising out of or relating to: (i) Contributor's breach or alleged breach of this Agreement; (ii) Contributor's non-payment of any federal, state or local withholdings or taxes, social security, unemployment, workers' compensation or disability insurance; and (iii) Contributor's or its Related Parties' acts or omissions (including negligence or strict liability) related to the subject matter of this Agreement, including, without limitation, any third party claim or action based on, arising out of or relating to any Work(s) licensed hereunder. Contributor shall promptly reimburse Company and the Indemnified Parties for any liabilities incurred in connection with any such claims. Company shall provide Contributor with: (A) prompt written notification of any such claims; (B) sole control and authority over the defense or settlement thereof; and (C) reasonable assistance necessary to settle and/or defend any such claim, at Contributor's expense, provided that if any settlement requires any action or admission by, or would impose an unindemnified monetary obligation on, Company or the Indemnified Parties, then the settlement will require Company's prior written consent. Failure by Company to provide prompt notice of a claim or to provide such control and authority or information and assistance, shall not relieve Contributor of Contributor's obligations under this Section, except to the extent that Contributor is materially prejudiced by such failure in your defense of such claim. Company may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at Company's own expense, unless Contributor fails or refuses to secure legal counsel to defend any claim in a timely manner, in which case the expense of Company's counsel shall be borne by Contributor. (b) Limitation of Liability. COMPANY IS A PROVIDER OF INTERACTIVE COMPUTER SERVICES, SUBJECT TO THE PROTECTIONS AND LIMITATIONS OF LIABILITY AFFORDED BY THE COMMUNICATIONS DECENCY ACT (47 U.S.C. 223 et seq.) AND OTHER APPLICABLE LAWS. IN NO CASE SHALL COMPANY OR ITS RELATED PARTIES BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFIT, USE OR OTHER ECONOMIC ADVANTAGE), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES, OR ANY OTHER LEGAL THEORY. COMPANY'S AND ITS RELATED PARTIES' TOTAL LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL IN NO CASE EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THE AGREED UPON AMOUNTS PAID OR PAYABLE TO CONTRIBUTOR UNDER THIS AGREEMENT, OR (II) TEN DOLLARS (U.S. $10.00). CONTRIBUTOR ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS REFLECT A FAIR ALLOCATION OF RISK AND THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND CONTRIBUTOR AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF COMPANY AND ITS RELATED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
9. Notices. Except as otherwise expressly provided herein, any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of (a) actual receipt, irrespective of the method of delivery, (b) on the delivery day following dispatch if sent by express mail (or similar next day air courier service), or (c) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
10. Entire Agreement; Amendment. This Agreement and the documents referenced herein contains the complete agreement and understanding between the parties with respect to the subject matter hereof and supersedes any prior agreements or understandings, written or oral. Company strongly recommends that prior to clicking the "I CONFIRM" button below, Contributor print and keep a copy of this Agreement (including all documents referenced herein) for its records. This Agreement may be amended or modified at any time, provided that such amendment or modification is in writing and is signed or electronically acknowledged/accepted and confirmed by "click-through" by the parties hereto. 11. Severability; Waivers. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties' intentions and the remaining provisions shall remain in full force and effect. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel to enforce any provision of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought.
12. Successors and Assigns. Company may transfer or assign this Agreement or any of its rights or obligations hereunder. Notwithstanding anything herein to the contrary, Contributor shall not assign, transfer, or subcontract for, this Agreement (whether by operation of law or otherwise) or any of Contributor's rights or obligations under this Agreement, without the prior written consent of Company. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
13. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties agree that exclusive venue for any dispute arising under or in connection with this Agreement shall be in the federal district court for the District of Colorado or the state court for the City and County of Denver, Colorado. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING UNDER OR IN RELATION TO THIS AGREEMENT.
14. Force Majeure. Neither party shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party or Related Parties.
15. Construction. For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b) words importing gender include all genders; (c) all references to this Agreement and the words "herein", "hereof", "hereto" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement, (e) the words "including," "included" and "includes" mean inclusion without limitation; (f) in the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party. A printed version of this Agreement and of any acceptance given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
16. Cumulative Remedies. In addition to any remedies provided in this Agreement, the parties shall have all remedies provided at law or in equity. The rights and remedies provided in this Agreement or otherwise under law shall be cumulative and the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy, except as expressly provided otherwise in this Agreement.
17. Third Party Beneficiaries. Nothing in this Agreement is intended to confer any rights or remedies on any persons other than the parties to it. This Agreement shall not be construed to relieve or discharge any obligations or liabilities of third persons, nor shall it be construed to give third persons any right of subrogation or action over against any party to this Agreement.
18. Company E-mail. Subject to applicable law, Contributor hereby acknowledges that acceptance of e-mail from Company is essential to the proper operation of the program described herein and each party's respective performance obligations hereunder, as from time to time, Company will send to Contributor Option exercise notices, PayPal� payment notices, tax or other legal compliance forms/notices, inquiries regarding submitted Works or Contributor's Application/account, and/or other notices regarding administration of this Agreement (collectively, "Company Email"). Accordingly, subject to applicable law, Content Prouder hereby agrees to accept, and to not block or otherwise reject, Company Email. If Contributor believes that Company is distributing inappropriate or unnecessary Company E-mail, please notify Company at admin@associatedcontent.com.
CONTRIBUTOR ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT AND AGREES TO ALL ITS TERMS AND CONDITIONS. CONTRIBUTOR UNDERSTANDS THAT COMPANY MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT OTHERS TO SUBMIT WORKS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT. CONTRIBUTOR IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
The Contributor executing this Agreement must sign directly below. This Agreement will not be "signed" in the sense of a traditional paper document. Rather, the Contributor shall enter alpha characters corresponding to his/her first and last name in the signature block below. Company does not determine or pre-approve what the entry should be, but simply presumes, and Contributor hereby represents and warrants, that this specific entry has been adopted to serve the function of Contributor's electronic signature and signifies Contributor's assent to and acceptance of all of the terms and conditions of this Agreement. The signature should consist of the signatory's first and last name, e.g. John Doe.
PERFORMANCE PAYMENTS BETA
Terms and Conditions
WELCOME TO THE ASSOCIATED CONTENT PERFORMANCE PAYMENTS BETA (The "PROGRAM"). PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS AND THE FAQ BEFORE REGISTERING FOR THE ASSOCIATED CONTENT PERFORMANCE PAYMENTS BETA PROGRAM. PARTICIPATION IN THE ASSOCIATED CONTENT PERFORMANCE PAYMENTS BETA PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS.
Introduction. This agreement ("Agreement") between You and Associated Content, Inc. ("AC") consists of these AC Performance Payments Beta (the "Program") Standard Terms and Conditions ("Terms and Conditions"), and incorporates by reference AC's Terms of Use and AC's ICLA. A description of the Program, as generally offered by AC, is available at the Program Frequently Asked Questions ("FAQ") or such other URL as AC may provide from time to time. "You" or "CONTRIBUTOR" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
1.Eligibility. In order to be eligible to participate in the Program:
*You must be at least 18 years old.
*You must accept the Terms and Conditions, provide accurate contact information and abide by the Program Policies
*Once you have enrolled in the Performance Payments Beta Program, in order to remain enrolled and receive payments, you must have either published content or logged into your account at least 90 days from your initial enrollment or the last time you logged in or published content, whichever is later (Dormant). In the event you account goes Dormant, and AC terminates your account, we will exercise commercially reasonable efforts to send you a final payment if the amount owed to you exceeds $15. We reserve the right to offset any amount owed to you by the amount of AC's damages if we terminate for cause.
2.Changes and Updates. AC needs to have the freedom to make strategic and business decisions about the Program (and all related and successor programs). For this reason, we reserve the right, in our sole discretion, to change all or part of these Terms and/or the AC Beta Performance Payments Policies and to change or discontinue the Beta Program, including but not limited to changing the way in which we derive the Page Views data, the display of the data. We may make these changes at any time. Your continued participation in the Program will constitute your acceptance of the then-current terms and conditions, Policies and service offerings.
3.Feedback. We will own and have the sole right to use any ideas, information, understandings, and concepts derived from your evaluation of the Program or any other suggestions or information you disclose, without restriction and without compensating you in any way.
4.Your Acknowledgments. You acknowledge that:
*the data presented in the Program may not be accurate, and that you will not rely on those numbers in any way; and
*while AC will use its commercially reasonable efforts to report and pay the Performance Payments accurately, and in a timely fashion, because we are in a beta environment there may be some errors and delays; and
*all right, title and interest in the data we provide to you, and the Program (including but not limited to all technology and processes involved in the Program) are exclusively owned by AC. We reserve any rights not expressly granted in this Agreement and disclaim all implied licenses; and
*we reserve the right to change or discontinue the Program, in whole or in part and temporarily or permanently, without notice and without liability to you or any third party.
5.Program Participation. Participation in the Program is subject to AC's prior approval and Your continued compliance with the terms of this Agreement as well as the Performance Payments Beta Policies. AC reserves the right to refuse participation to any applicant or participant at any time in its sole discretion.
6.Definitions.
*Site. means the AC Website located on the worldwide web at www.associatedcontent.com, and any subdomains or channels thereunder.
*Page View. means one view of a single page of Content on the Site containing an advertising impression. AC shall in its sole discretion determine the type, frequency, and category of advertising impressions served on the Site in general and any content page in particular.
*Content. means text, audio or video content published by You on the Site.
*Active Member. Means a CONTRIBUTOR who has logged into his/her account or profile, or has submitted Content to be published on the Site in the last 90 days.
*PPM™. means Payment Per Thousand Page Views ("M" being the Roman numeral for one thousand). For the purposes of this agreement, it is the rate AC will pay a CONTRIBUTOR for every thousand (1,000) Page Views of Your Content. The PPM may change from time to time, and is related to a particular piece of content.
7.Parties' Responsibilities. You agree that you are solely responsible for all Content and materials published by you on the Site, and adherence to the terms of this Agreement, including compliance with the Program Policies. AC reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of bots, spiders, or other artificial or fraudulent means or methods of refreshing or generating Page Views, or any engagement in any activity prohibited by this Agreement.
8.Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate Page Views, impressions of or clicks to any of your Content through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated page refreshing methods; (ii) act in any way that violates any Performance Payments Beta Policies posted on the Site, as may be revised from time to time, or any other agreement between You and AC (including without limitation the AC ICLA and Terms of Use), or engage in any action or practice that reflects poorly on AC or otherwise disparages or devalues AC's reputation or goodwill. Any determination of what constitutes a material breach of this section shall be made by AC, in its sole discretion. In the event that AC determines that a CONTRIBUTOR is generating fraudulent PVs, you acknowledge that it shall be deemed a material breach of this Agreement, and AC may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies, forfeiture of any amounts owed, withholding payment for any amounts due that are a result of fraudulent activity, or suspending or terminating the offending CONTRIBUTOR from publishing on AC.
9.Reports. Any data disclosed to You by AC are only estimates, and may be subject to further adjustments by AC with respect to the authenticity of the Page views. The determination of the number of Page Views to Your Content shall be determined solely by AC's internal logs or such other method as may be reasonably determined by AC. No other measurements or statistics of any kind shall be accepted by AC or have any effect under this Agreement. The Page view statistics of your content will be updated weekly and located on you "My Content" page of your profile. The determination of what data is disclosed you shall be determined in AC's sole discretion. Any data disclosed on the Dashboard shall be the considered Confidential Information of AC, as defined below.
10.Term. This Agreement shall continue in full force and effect until it is terminated by either party or until You are no longer an Active Member.
11.Termination; Cancellation. Either party may terminate this Agreement with or without cause at any time by sending written notice of your desire to cancel Your participation in the Program to admin@associatedcontent.com. This Agreement will be deemed terminated within ten (10) business days of AC's receipt of Your notice. Upon such termination, subject to any setoffs, and any terms set forth in section 16, AC shall distribute any funds remaining in Your account. AC may investigate any activity that may violate this Agreement. AC may at any time, in its sole discretion, terminate all or part of the Program, terminate this Agreement, or suspend or terminate the participation of any CONTRIBUTOR in all or part of the Program for any reason. In addition, AC reserves the right to terminate without notice any account of a CONTRIBUTOR that is not an Active Member. Upon termination of any account in the Program or termination of this Agreement for any reason, Sections 3, 4, 6, 12 through 16 and 18 and through 22 shall survive termination.
12.Confidentiality. You agree not to disclose AC Confidential Information without AC's prior written consent. "AC Confidential Information" includes without limitation: (a) all AC software, technology, reporting, specifications, materials, guidelines and documentation relating to the Program; (b) PPM rates or other statistics relating to the Site or your Content's performance in the Program provided to You by AC; and (c) any other information designated in writing by AC as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of AC's gross payments to You pursuant to the Program. AC Confidential Information does not include information that has become publicly known through no breach by You or AC, or information that has been (i) independently developed without access to AC Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority.
13.No Guarantee. COMPENSATION EARNED BY OTHER CONTRIBUTOR IS NOT A GUARANTEE OF ANY KIND THAT ANY OTHER CONTRIBUTOR WHO MEETS THE MINIMUM EXPECTATIONS WILL EARN THAT MUCH, OR ANY SPECIFIC AMOUNT. AC OFFERS THIS INFORMATION AS A MEANS OF SHARING WITH APPLICANTS THE POTENTIAL COMPENSATION THAT THEY MAY EARN.
14.No Warranty. AC MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO PPMs PAGEVIEW COUNTS, ADVERTISING, LINKS, AND OTHER SERVICES OR INFORMATION, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
15.Limitations of Liability; Force Majeure. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) AC'S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY AC TO YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
16.Payment. AC will pay you a minimum PPM once your account has reached a minimum balance based on the aggregate Page Views of all of your Content published on the Site. AC reserves the right to change the minimum PPM, and the minimum balance threshold from time to time. Payments will be made on a monthly basis. Each time that we send you a payment, we incur administrative and other costs. For this reason, we will not send you a payment if the amount owed to you is less than $15. If your participation in the Program terminates, we will exercise commercially reasonable efforts to send you a final payment if the amount owed to you exceeds $15. We reserve the right to offset any amount owed to you by the amount of AC's damages if we terminate for cause. AC reserves the right to withhold payment or charge back Your account due to any of the foregoing or any breach of this Agreement by You, pending AC's reasonable investigation of any of the foregoing or any breach of this Agreement by You. AC reserves the right to terminate a CONTRIBUTOR's engagement and/or change the Program policies at any time for any reason, notwithstanding any information contained in any materials or communication from AC to You. You also acknowledge that AC from time may incur administrative costs or other costs related to the Program. In such an event, any such costs will be deducted from your gross amount. To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. Activities (as described on the U.S. IRS Code or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree that you are solely responsible to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the Program. AC may change its pricing and/or payment structure at any time. If You dispute any payment made under the Program, You must notify AC in writing within thirty (30) days of any such payment; failure to so notify AC shall result in the waiver by You of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by AC. No other measurements or statistics of any kind shall be accepted by AC or have any effect under this Agreement. The payments made under this Agreement are for use by You only and may not be transferred or in any manner passed on to any third party (i.e., distributed to Sites managed by You that require separate payments) unless expressly authorized in writing by AC (including by electronic mail).
17.Publicity. You agree that AC may use Your name and/or logo in presentations, marketing materials, customer lists, financial reports, and Site listings of customers. If You wish to use AC's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features ("Brand Features"), You may do so, upon written approval of AC.
18.Representations and Warranties. You represent and warrant that (a) all of the information provided by You to AC to enroll in the Program is correct and current; (b) You are the owner of each piece of Content or that You are legally authorized to act on behalf of the owner of such Content for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any Copyright, Trademark, and Patent laws, the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. You further represent and warrant that your Content: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) does not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not pornographic, hate-related or otherwise violent. YOU EXPRESSLY AGREE TO THE FOLLOWING WARRANTY DISCLAIMER. YOU ARE ENROLLING IN THE PROGRAM AT YOUR OWN RISK. THE BETA PROGRAM AND ALL DATA AC PROVIDES UNDER THIS PURSUANT TO THE PROGRAM IS PROVIDED "AS IS." AC DOES NOT WARRANT THAT THE PROGRAM WILL OPERATE UNINTERRUPTED OR ERROR-FREE. AC IS NOT RESPONSIBLE FOR ANY DATA PROVIDED HEREUNDER. TO THE EXTENT ALLOWED BY LAW, AC AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. AC MAKES NO WARRANTY AND NO REPRESENTATION ABOUT THE DATA PROVIDED TO YOU THROUGH THE PROGRAM. This warranty disclaimer shall apply to the maximum extent permitted by law.
19.Your Obligation to Indemnify. You agree to indemnify, defend and hold AC, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your Content, use of the Program, the Site(s), and/or Your breach of any term of this Agreement.
20.AC Rights. You acknowledge that AC owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Program (including, but not limited to AC's Brand Features, excluding items licensed by AC from third parties), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any AC services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. You will not remove, obscure, or alter AC's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any AC services, software, or documentation (including without limitation the display of AC's Brand Features. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
21.Conflict. To the extent that any of the terms in the Performance Payments Beta Policies and these Terms and Conditions are in conflict, as between the two, the terms that are more favorable to AC shall prevail.
22.Information Rights. AC may retain and use, subject to the terms of the AC Privacy Policy, or such other URL as AC may provide from time to time), all information You provide, including but not limited to Site demographics and contact and billing information. You agree that AC may transfer and disclose to third parties personally identifiable information about You for the purpose of approving and enabling Your participation in the Program, including to third parties that reside in jurisdictions with less restrictive data laws than Your own. AC may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. AC disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. AC may share non-personally-identifiable information about You, including Site URLs, Site-specific statistics and similar information collected by AC, with advertisers, business partners, sponsors, and other third parties. In addition, You grant AC the right to access, index and cache the Site(s), or any portion thereof, including by automated means including Web spiders or crawlers.
23.Miscellaneous. This Agreement shall be governed by the laws of Colorado , except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Denver County , Colorado . The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by AC. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties' intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to AC. Notwithstanding the foregoing, AC may assign this Agreement to any affiliate at any time without notice. The relationship between AC and You is not one of a legal partnership relationship, but is one of independent contractors.