Online Services Agreement

CONTENT ON DEMAND

SERVICES AGREEMENT

CONTENTLY, INC. (“CONTENTLY” OR ‘WE”) IS WILLING TO PROVIDE CERTAIN SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR” OR “CUSTOMER”) THAT ENTERS INTO A WRITTEN SERVICE ORDER, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH CONTENTLY THAT REFERENCES THIS AGREEMENT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (“AGREEMENT”).  READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY SERVICES FROM CONTENTLY .  THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND CONTENTLY. BY ENTERING INTO A WRITTEN SERVICE ORDER, STATEMENT OF WORK OR SIMILAR DOCUMENT WITH CONTENTLY THAT REFERENCES THE AGREEMENT BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

FOR THE SAKE OF CLARITY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (AND FOR USE ON BEHALF OF) A COMPANY OR OTHER ENTITY (A “CORPORATE ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATE ENTITY TO THE TERMS OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT THE TERM “YOU” OR “CUSTOMER” REFERENCED BELOW REFERS TO SUCH CORPORATE ENTITY.

 

Services Agreement

In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Services. During the Term (as defined below) and if mutually agreed to in writing, Contently may from time to time provide certain services to Customer (the “Services”).  Any Services shall be evidenced by one or more written service orders, statements of work or similar documents (each, an “Order Form”).  The main body of this Agreement shall control over any conflicting provisions of the Order Form unless such Order Form specifically states that the conflicting provision should prevail over such main body.
2. Payment.

(a)       Fees.  Customer shall pay Contently the fees described in the applicable Order Form.  Contently shall invoice Customer as provided in the Order Form.  Customer shall pay all invoices within thirty (30) days of Customer’s receipt of the invoice unless indicated otherwise in the Order Form.  Customer shall be solely and exclusively responsible for the payment of required federal, state and local taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Contently and any taxes or obligations imposed upon Contently under federal, state and local wage laws.

(b)       Expenses.  Customer agrees to reimburse Contently for all reasonable and ordinary expenses incurred by Contently in delivering Services to Customer provided Customer pre-approves such expenses in advance in writing.  Contently will itemize such expenses on Customer’s invoices.

3. Term. This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 8 below (the “Term”).
4. Ownership.  Except for Contently Materials and Third Party Materials (each as defined below), Customer shall, upon payment in full therefor, own all right, title, and interest in and to all tangible and intangible results and items arising in the course of performing or constituting the results of the work or Services performed under this Agreement, and all intellectual property rights therein (the “Deliverables”).  Contently agrees to execute any instruments and to do all things reasonably requested by Customer to vest Customer with all ownership rights in such Deliverable.  Customer acknowledges, however, that the Deliverables provided to Customer may contain materials owned by third parties and licensed to Contently (“Third Party Materials”) or Contently Materials.  To the extent that Contently delivers such Third Party Materials or Contently Materials to Customer then Contently grants Customer a perpetual, non-exclusive, non-transferable, royalty-free, worldwide license to use such Third Party Materials and Contently Materials solely in conjunction with Customer’s use of the Deliverables (and not separate therefrom).  “Contently Materials” shall mean all information, methodologies, data, ideas, concepts, know-how, techniques, documentation, software, and development tools that Contently possesses prior to the commencement of the Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property while performing the Services.  Contently shall own all right, title and interest in and to the Contently Materials.  Notwithstanding the foregoing, certain Third Party Materials, if any, may be subject to, special license notices, terms and/or conditions as provided to Customer by Contently (“Third-Party Terms”). The Third-Party Terms may include important licensing and warranty information and disclaimers. In the event of conflict between the Third-Party Terms and the other portions of this Agreement, the Third-Party Terms will take precedence (but solely with respect to the Third Party Materials to which the Third-Party Terms relate).  Customer also acknowledges and agrees that Contently is in the business of providing the Services, and as such will retain the unlimited right to use and to sublicense to others the ideas, concepts, techniques, processes, routines, algorithms or other expertise which Contently develops or employs in providing the Services, including those acquired in developing the Deliverables, in any products and for any purposes.
5. Indemnification. Contently hereby agrees to defend, indemnify and hold Customer, including its officers, directors, employees and agents harmless from and against any and all liability, loss, costs, claims and damages, including reasonable attorneys’ fees and expenses resulting from any third party claim or threatened claim (a) that the Services infringe, violate or misappropriate any United States patent, copyright, trademark, or other property right of a third party (an “IP Claim”); or (b) resulting from any bodily injury; or tangible property damage caused by Contently’s gross negligence in the performance of the Services under this Agreement; provided that Customer gives Contently: (i) prompt written notice of any such claim or threatened claim; (ii) sole control of the defense, negotiations and settlement of such claim; and (iii) full cooperation in any defense or settlement of the claim (at Contently’s cost).  Regardless of the foregoing, Contently shall have no liability or obligation to Customer with respect to any IP Claim if such a claim is based on (a) the combination, operation, or use of any Deliverables provided by Contently with software or equipment which was not provided by Contently, to the extent that Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; (b) the claim results from Customer’s modification of any Deliverables provided by Contently, (c) the claim results from compliance by Contently with Customer’s custom requirements or specifications, (d) the Submissions (as defined on Section 9) or (e) the claim results from the use of any Third Party Materials.  This Section 5 states Contently’s sole obligation and Customer’s sole remedy in the event that the Services or any resulting deliverables provided by Contently infringe or misappropriates any intellectual or proprietary rights of any third party.
6. Warranty. Contently warrants that (i) all Services will be provided with reasonable skill and care conforming to generally accepted industry standards and (ii) for a period of thirty (30) days following the initial delivery of any Deliverable to Customer, the Deliverable will perform in conformity with the specifications set forth and described in the applicable Order Form, in all material respects.  Such warranty does not apply to any Deliverable that has been damaged, altered or used or maintained or stored other than in conformity with this Agreement and the applicable Order Form.  Customer must report any deficiency in Deliverables or Services to Contently in writing within thirty (30) days following the delivery of the Deliverable or Services, as the case may be, to Customer.  For any breach of the above warranties where Customer notifies Contently within such thirty (30) day period, Contently will, at its option and at no additional cost to Customer, (a) provide remedial services necessary to enable the Deliverable or Services to conform to the warranty, (b) replace any defective Deliverable with a Deliverable that conforms with the specifications set forth and described in the applicable Order Form, in all material respects , or (c) refund amounts paid by Customer to Contently for the defective Deliverable or Services.  Customer will provide Contently with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE IN THIS SECTION 6, CONTENTLY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT. ACCORDINGLY, THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE.

7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.   EXCEPT AS MAY ARISE OUT OF CONTENTLY’S BREACH OF SECTION 10 BELOW, THE TOTAL CUMULATIVE LIABILITY OF CONTENTLY TO CUSTOMER FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO CONTENTLY UNDER THE ORDER FORM FOR THE SERVICES OR DELIVERABLE WHICH FORMS THE SUBJECT OF THE CLAIM. THE PROVISIONS OF THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH IN EACH ORDER FORM REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
8. Termination. Either party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  Termination of an Order Form shall not be deemed a termination of this Agreement.  Termination of this Agreement shall, however, terminate all outstanding SOWs.  Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other party for any reason, if at such time there are no outstanding SOWs then currently in effect.  All rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
9. Contently Platform/ Submissions. Customer may be provided access to Contently’s editorial marketplace and tools (“Platform”) made available by Contently at www.contently.com which connects freelance writers, editors and other freelance talent made available to Customer through the Platform (“Freelancers”) to customers for the purpose of facilitating requests for the creation of content, content creation workflows, and such other services as may be offered by Contently from time to time. Customer agrees as follows:

(a) Customer may submit content requests (Content Requests) through the Platform to Freelancers, which Freelancers may choose to complete in return for compensation specified by Customer (Content Fee).  Content Requests shall specify (a) the form, length, and/or content of the requested submission (“Submission”), (b) the amount of the Content Fee to be paid by Customer with respect to such Submission, and (c) whether Customer will acknowledge Freelancer’s authorship of or contribution to any Submission upon publication of such accepted Submission.  Customer shall not submit Content Request for any content or Submissions that are unlawful, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.  All Submissions are provided “AS IS” by Contently and Contently makes no warranty regarding such Submissions and for purposes of this Agreement the Freelancers are not to be deemed Contently’s personnel or subcontractors.

(b) All intellectual property rights to Submissions shall be transferred to Customer by Freelancer upon Customer’s full and complete payment for the applicable Submission.  Customer expressly acknowledges and agrees that it shall have no rights in any Submissions for which it has not remitted complete payment of the applicable Content Fee. Without limiting the foregoing, if Customer makes substantial changes or alterations to a Submission, Customer shall not acknowledge Freelancer’s authorship of such Submission without Freelancer’s express written consent. For clarification purposes, a “substantial” change or alteration shall mean a change that alters the original agreed-upon purpose of the Submission or alters that content or style so dramatically that the modified Submission is unrecognizable from the original.

(c) During the term of the Order Form Contently shall ensure that all Freelancers agree to terms and conditions substantially similar to those set forth at https://contently.com/terms (the “Freelancer Agreement”).  Contently shall ensure that the Freelancer Agreement provides that Contently’s customer are third party beneficiaries to such Freelancer Agreement entitled to enforce the Freelancer Agreement against such Freelancer.

(d) Contently hereby grants to Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable license to access and use the Platform solely for Customer’s internal business purposes.  This license is restricted to use by Customer and its personnel and does not include the right to use the Platform on behalf of any third party. Customer is responsible for procuring and maintaining the network connections that connect Customer to the Platform.  Customer agrees: (a) that only authorized personnel are permitted to use the Platform; (b) that it is responsible for authorized personnel’s actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Platform from unauthorized use and/or access.  Without Contently’s express prior written consent in each instance, Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Platform or access the Platform in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Platform.  Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license, the Platform to any third-party.  Customer shall be liable for any breach of this Agreement by any of its personnel.

(e) During the term of each Order Form and for a period of one (1) year thereafter, Customer agrees that it will not directly solicit work from or otherwise work with any employee of Contently or any Freelancer who was in any way involved in the performance of Services rendered under this Agreement; provided, however, that this provision shall not be construed as prohibiting Customer from hiring any such employee or Freelancer who applies for employment with Customer (a) by responding to a job posting of Customer published in a periodical or elsewhere; or (b) as a result of any contact hereafter established by an independent third party.

10. Confidentiality.  For the purpose of this Agreement, “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.  Each of the parties agrees: (a) not to disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those agents, advisors, or subcontractors who have a reasonable need to access such information, and who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. If a party is required by law to disclose the other party’s Confidential Information, it will promptly notify the other party (providing notice prior to disclosure if permitted by law), and provide reasonable assistance in seeking protection of such Confidential Information. Upon termination or expiration of this Agreement the receiving party will promptly return or destroy all of the disclosing party’s Confidential Information in its possession.  This section shall survive termination of this Agreement.
11. Miscellaneous.
12. Governing Law. This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law rules.
13. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party.  Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  This Agreement shall be binding upon and for the benefit of Contently, Customer and their permitted successors and assigns.
14. Integration. This Agreement, including all exhibits hereto, and executed SOWs hereto, contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the parties relating thereto and is binding upon the parties and their permitted successors and assigns.  Only a written instrument that refers to this Agreement or the applicable Order Form and is duly signed by the authorized representatives of both parties may amend this Agreement or such Order Form.  Any inconsistent or conflicting terms and conditions contained in any purchase order issued by Customer shall be of no force or effect, even if the order is accepted by Customer.  This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the party drafting this Agreement in construing or interpreting the provisions hereof.
15. Remedies, Waiver and Severability. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.  Except as otherwise set forth herein, all rights and remedies herein shall be cumulative and additional to any other remedies provided by law or equity.
16. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth in the Order Form.
17. Independent Contractor. Each party is an independent contractor and neither party is, nor shall be considered to be, an agent, employee or representative of the other.  All personnel supplied or used by Contently shall be its employees or subcontractors and Contently assumes full responsibility for the actions of such personnel while performing Services and for the payment of their compensation (including, if applicable, withholding of income taxes and the payment and withholding of social security and other payroll taxes), workers’ compensation, disability benefits and the like to the extent applicable.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a party to any such person.
18. Force-Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.