WEBSITE OPERATOR EXPERT CONTRIBUTOR AGREEMENT
THIS CONTRIBUTOR AGREEMENT is entered into as of this [_] day of , 2008 (the “Effective Date”), by and between XXX Media, Inc., a Delaware corporation (“XXX Media,” “we,” or “us”), and [_], an individual who resides at [_] (“Contributor” or “you”).
A. XXX Media operates the WEBSITE OPERATOR Website (as defined below);
B. Contributor is an expert in the field of health, sports, aging, and lifestyle; and
C. Contributor wishes to write articles and otherwise contribute content to the WEBSITE OPERATOR Website, and XXX Media wishes to engage Contributor for such purpose.
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby enter into this Agreement.
- Definitions. The following capitalized terms have the meanings given below when used in this Agreement.
“Agreement” means, collectively, this contributor’s agreement, any policies and procedures posted by us on the WEBSITE OPERATOR Website, and any style guide provided to you by us.
“Contribution” means an article, forum post, blog, video, or other creative material provided or delivered by you to us pursuant to this Agreement.
“Effective Date” has the meaning given to it in the preamble to this Agreement.
“WEBSITE OPERATOR Website” means the website located at www.WEBSITE OPERATOR .com and any successor thereto.
“Term” has the meaning given to it in Section 6.A.
“Material” has the meaning given to it in Section 5.C.
- Contributor’s Responsibilities.
A. Contributions. You will deliver no less than 8 articles per month to us in accordance with the following schedule: (1) 4 articles no later than the 15th of each calendar month; and (2) an additional 4 articles no later than the last day of each calendar month. Each article you submit must be in final revised form, comprised of between 400 and 600 words, and otherwise in conformance with this Agreement. Each article will be in your area of expertise. From time to time, we may request and you will deliver to us articles about specific subjects within your area of expertise.
B. Profile. You will create an “Expert Profile” suitable for publication on the WEBSITE OPERATOR Website within 5 business days after our request. You will provide photographs of yourself, biographical information, and such other information and materials as we may reasonably request for inclusion in your profile. You will update your profile from time to time to keep the profile interesting to repeat visitors to the WEBSITE OPERATOR Website.
C. Forums and Q&A. You will visit the forums and category-related articles located on the WEBSITE OPERATOR Website and post comments, answers user questions, and otherwise engage users no less than 3 times per week for a total of no less than 2 hours.
A. Action Plan. Within 30 days of the Effective Date, you will create and finalize an action plan in consultation with us. The action plan will describe your objectives as a contributor to the WEBSITE OPERATOR Website and set forth a timeline and plan for achieving those objectives. You will consult with us on a regular basis during the Term regarding the achievement of the objectives in your action plan.
B. Videos and Promotional Programs. From time to time we may ask you to appear or participate in marketing, promotional or educational videos, radio programs, or other programs related to your area of expertise or services under this Agreement. If requested by us, you will assist in the development of, and appear in, up to 10 short videos or other programs per calendar quarter (pro rated for any period less than a quarter) in your subject of expertise. Any program produced pursuant to this Section 2.E. is subject to the terms of this Agreement, including Section 5. If we request that you appear in a video, we will supply all equipment and personnel necessary to film the video, and we will film the video at a location this is reasonably convenient to you.
- Quality of Services; Performance Reviews; No Agency Relationship.
A. Quality of Services. You will perform the Assignment in a professional manner in accordance with the level of care customarily observed by skilled professionals rendering similar services. All Contributions must meet be thoroughly researched, founded on an informed understanding of the current state of knowledge on the relevant subject matters, and meet the quality standards set by XXX Media and in any applicable style guide, as determined by us. If requested by us, you will promptly revise and resubmit your Contributions in accordance with our suggestions.
B. Performance Reviews. You agree to participate from time to time in performance reviews of your work under this Agreement with one of our editors or other representative.
C. No Agency Relationship. You are an independent contractor and are not authorized to make representations or commitments to third parties on behalf of us of our affiliates. This Agreement does not create an employment or agency relationship.
- Our Payment Obligation To You.
A. Complete Consideration. In full consideration for the rights granted and services performed by you under this Agreement, we will pay you $__ per month during the Term. Your compensation as provided for in this Section 4.A. is full and complete payment for your performance of your obligations and grants of rights under this Agreement. Provided you are not in breach of this Agreement, we will pay you for each month during the Term on or before the 15th day of the following month.
B. No Royalties or Other Payments Required. You will not be entitled to any royalties or proceeds received by us or any third party from the commercialization and publication in any manner of your Contributions or Materials.
- Contributor’s Grant of Rights; Our License To You.
A. Ownership of Contributions. Each of your Contributions will be original and solely created by you as a "work-made-for-hire" specially ordered or commissioned by us, with XXX Media being deemed the sole author of the Contribution and the owner of all rights whether now known or hereafter devised (including all copyrights and all extensions and renewals of copyrights) in and to the Contribution, with the right to make all uses of the Contribution throughout the world and all changes in each Contribution. Without further obligation to you, we may use, reproduce, edit, change, add to, take from, translate, reformat, or reprocess the Contribution in any manner. To the extent any Contribution is not deemed to be a work made for hire, you irrevocably assign to us all rights whether now known or hereafter devised (including all copyrights and all extensions and renewals of copyrights) in and to each Contribution throughout the world, including any and all of your rights to authorize or control the exploitation of each Contribution by any media and means now known or hereafter devised. You waive all "moral rights of authors" that may exist or any similar rights. We may, but are not obligated to, provide attribution to you in connection with any Contribution or to display, use or otherwise exploit any Contribution. We have the right, without liability to you, to use any ideas, suggestions, or questions provided by you to us. Upon request by us, you will promptly provide us with such documents and agreements as we may require to further evidence and confirm your representations, warranties, and covenants under this Agreement, including material and location releases and assignments.
B. Our License To You. We grant you a royalty-free, limited, nonexclusive, nonlicensable license to the Contributions for performance, distribution, and display on your personal or business website so long as your website contains no less than 1 prominent crawlable link to the WEBSITE OPERATOR Website appearing in close proximity to each Contribution on your website.
C. Name and Likeness Release. You give us the right to interview you and to photograph, videotape, record, reproduce, portray and otherwise exploit your name, likeness, voice, and biographical information in connection with your Contributions and to use the results and proceeds thereof (collectively, “Material”) as follows: (1) to use, incorporate, exhibit, distribute, use, publish, and edit the Material in whole or in part, alone or in conjunction with other material for any purpose and in any manner whatsoever as we so choose in any and all media, in any and all forms and versions, now known and hereafter devised, throughout the world and in perpetuity. You will not have any rights of review regarding the Material or the exercise of the granted rights and we have the right to edit or delete the Material, juxtapose any part of the Material with any other materials, and make any other changes in the Materials as we choose in our sole discretion; and (2) to copyright the Material in XXX Media’s own name or in any other name (the Material is a “work made for hire”).
D. Disclaimers. XXX Media will include warranty and liability disclaimers on the WEBSITE OPERATOR Website. The disclaimers may include statements that: (i) the site information is not medical advice; (ii) use of the site is at the users’ sole risk; and (iii) XXX Media and its suppliers are not liable for damages arising from use of the information on the Site.
- Term and Termination.
A. Term. This Agreement begins on the Effective Date and, unless earlier terminated for breach, continues for 12 months. Either party may provide written notice to the other party that it wishes to terminate the Agreement at the end of the then-current term. Such notice must be delivered no less than 30 and no more than 60 days before the end of the term or any renewal term. If such notice is not so delivered, this Agreement will automatically renew for an additional 6 months. The original term and any renewal term(s) are collectively referred to in this Agreement as the “Term.”
B. Termination for Cause. Either party may terminate this Agreement as a result of a material breach of the Agreement by the other party. In order to terminate this Agreement for breach, the nonbreaching party must provide the breaching party with written notice and the opportunity to cure the breach, if capable of cure, within 15 days. A material breach includes the failure to make any required payments, to deliver a Contribution by the deadlines set forth in the Agreement, or the failure of one or more of the Contributions to meet the quality standards set forth in the Agreement.
C. Survival. Section 5 (“Contributor’s Grant of Rights”), Section 7 (“Confidentiality”), Section 8 (“Representations and Warranties”), Section 9 (“Limitation of Liability”), Section 10 (“Choice of Law; Arbitration”) and any other term that should reasonably be construed as surviving the termination of this Agreement, will survive termination. After termination of this Agreement and if you so request, we will cease referring to you on the WEBSITE OPERATOR Website as one of our active contributors.
Confidentiality. During the Term, you may have access to our or our affiliates’ confidential and proprietary information ("Confidential Information"). During this Agreement and for 2 years after termination, you will not disclose or use our Confidential Information for any purpose other than as necessary to perform your duties under this Agreement. In performing your services under this Agreement, you will not use improperly or disclose any confidential or proprietary information or trade secrets of any former or current employers, clients, or other third persons.
Representations and Warranties. You represent, warrant, and covenant that:
A. you have the right and obtained all authorizations and consents necessary to execute and enter into this Agreement, grant the rights set forth in this Agreement, and perform your obligations;
B each Contribution (i) is original, (ii) does not and will not defame or disparage any person or entity or infringe upon or violate the intellectual property rights, rights of privacy, or any other rights of any person or entity; and (iii) is not the subject of any litigation or other claim or proceeding, or, to your knowledge, any threat thereof;
C. the Material (i) does not and will not defame or disparage any person or entity or infringe upon or violate the intellectual property rights, rights of privacy, or any other rights of any person or entity; and (ii) is not the subject of any litigation or other claim or proceeding, or, to your knowledge, any threat thereof;
D. you have not and will not convey or impair any rights in and to the Contribution or the Material; and
E. you do not have any relationship with any drug company, supplement manufacturer or distributor, health care facility or other person or entity that could reasonably be deemed to result in a bias or conflict of interest in the preparation of your Contributions;
F. all biographical and other information you have provided to us in connection with this Agreement and your engagement as an independent contractor for us is complete and accurate in all material respects;
G. each of your Contributions and any Material you submit will be based upon your personal research and informed understanding of the subject matter after thorough investigation and is not misleading or deceptive in any material respect; and
H. if you learn of any claims alleging that any Contribution or the Material infringes any third party’s rights or is unlawful, you will immediately notify us.
LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST OPPORTUNITIES OR PROFITS), SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CALIFORNIA CHOICE OF LAW; ARBITRATION. THIS AGREEMENT WILL BE INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, EXCLUDING THOSE LAWS THAT WOULD GIVE EFFECT TO THE LAWS OF A DIFFERENT JURISDICTION. ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE SHALL BE DETERMINED BY ARBITRATION IN SANTA MONICA, CALIFORNIA, IN A PROCEEDING ADMINISTERED BY JAMS PURSUANT TO ITS STREAMLINED RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
Taxes, Guild Payments, and Insurance. You are responsible for calculating and paying all taxes owed on all compensation received by you from us. If any governmental entity determines that we are responsible for paying taxes on your behalf, any further compensation will be net of taxes and you will promptly refund to us the amount(s) which we were required to pay on your behalf. No worker’s compensation or other insurance will be obtained by us on your behalf. No payroll deductions for employment taxes or insurance of any kind will be paid by us. We are not a signatory to any agreement that would require any payments to WGA, DGA, SAG, or any other union or guild in connection with this Agreement. You must deliver to us complete and accurate tax forms before we will make any payments to you under this Agreement.
Interpretation; Construction. In interpreting this Agreement, the words “including” and “includes” are meant to be illustrative and not limiting. This Agreement will not be interpreted in favor of one party or the other based on any presumptions regarding the drafting of the document. The section titles used in this Agreement are for convenience of reference only and have no legal or contractual effect. You may not assign or otherwise transfer any of your rights or obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. All notices under this Agreement must be in writing and will be considered delivered if sent via confirmed e-mail to an address provided by the recipient party to the sending party, or by overnight delivery service, or hand delivery to a provided address. If any provision of this Agreement is held to be unenforceable: (a) the enforceability of the remaining provisions of this Agreement will not be affected; and (b) the unenforceable provisions will be replaced with valid provisions the effect of which comes as close as possible to that of the unenforceable provisions.
Cooperation; Entire Agreement; No Waiver. Each of us will cooperate with the other’s reasonable requests to effectuate the intent of this Agreement. This Agreement is the entire agreement between the parties with respect to this subject matter and supersedes all prior understandings and agreements relating thereto. This Agreement applies to all Contributions submitted to us by you. Any modifications to this Agreement must be agreed to in writing by both parties. A party does not waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. The signature pages to this Agreement may be delivered in counterpart and by facsimile or electronic image file with the same effect as the delivery of original ink signatures.
[The next page is the signature page.]