CONTENT PROVIDER AGREEMENT
This Content Provider Agreement (“Agreement”) is by and between the company or individual specified during this online registration process (“Provider” or “you”) and Bryxen Software, Inc., an Indiana corporation (“Company”). Provider and Company are collectively referred to as the “Parties” or individually as a “Party”.
The policies, terms and conditions below limit Company’s liability and obligations to you and allow Company to change, suspend or terminate your access to and use of the online portal and Site located at www.iwriter.com (the “Site”) and the iWriter Platform. We urge you to carefully read the following terms and conditions. This Agreement may be modified at any time by Company without prior notice to you or the need to obtain your prior consent. Your access to and use of the Site and the iWriter Platform is also governed by information and guidelines, including the Terms of Use made available on the Site. To the extent that there are any conflicts between the terms, conditions or policies of this Agreement and the information and guidelines included on the Site, the terms, conditions and policies of this Agreement will govern.
Company operates and maintains the Site as an online portal that connects those desiring content for their website (“User(s)”) with web content writers (collectively, the “iWriter Platform”). Provider desires to write articles, content and other works of authorship (each a “Work”) for Company based on content requests posted by Users on the iWriter Platform. Provider understands that the User requesting the content may preview the Work submitted by Provider relating to the request prior to deciding whether to accept and purchase such Work, and Provider will only receive payment (as discussed in Paragraph 7) for a Work that is accepted by a User. Further, Provider acknowledges that Company will grant User a license to the Work only upon acceptance and payment to Company for the Work, and Company shall not be liable for any unauthorized use of the Work.
USER UNDERSTANDS THAT BY CHECKING THE BOX AND CLICKING THE “SIGN ME UP!” BUTTON OR USING THE SITE OR THE IWRITER PLATFORM (INCLUDING, WITHOUT LIMITATION, POSTING ANY WORK THERETO) YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE IWRITER PLATFORM. IF YOU AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT BUSINESS.
1. Eligibility.
(a) The iWriter Platform is available only to legal entities or individuals, who are at least eighteen (18) years old and capable of forming legally binding contracts. Without limiting the foregoing, the iWriter Platform is not available to temporarily or indefinitely suspended Providers.
(b) Provider shall not be eligible to use the iWriter Platform if Provider is: (i) a citizen of or resides in a country in which use of the iWriter Platform is prohibited by law, decree, regulation, treaty or administrative act; (ii) a citizen or resident of, or located in, a country or region that is subject to U.S. sanctions or embargoes, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria; or (iii) an entity, individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations.
2. General Obligations.
(a) Company has created the iWriter Platform as an online marketplace that connects Users seeking online content with content writers. Company expects a consistent and high level of courtesy, respect and professionalism from all users of the iWriter Platform, and Company reserves the right to expel or suspend you from using the iWriter Platform at any time, in Company’s sole discretion, and such decision will be final. You agree to use good judgment when posting Works, information, comments, feedback or other content on the Site or the iWriter Platform, including any comments or feedback relating to other content writers, Users, Company or any other third party. You may be held legally responsible for damages suffered by other content writers, Users, Company or any third party as a result of legally actionable, defamatory or libelous comments, remarks or other information or content you post to the iWriter Platform or the Site.
(b) Company will not be held legally responsible for any Works, remarks, information or other content you post or make available on the iWriter Platform or the Site. Company is not responsible for and does not monitor or censor Works and other content for accuracy or reliability. However, Company reserves the right to remove or restrict access to any Works, information or content posted or made available on the iWriter Platform or the Site if ordered to do so by a court or if Company considers such information or content to be in violation of this Agreement. Violation of the Agreement may result in suspension or termination.
3. Registration.
(a) Provider must register an account (“Account”) to make use of the iWriter Platform. All information provided by Provider with respect to the Account must be true, accurate and complete. Company reserves the right to verify any and all information provided by Provider with respect to Provider’s Account.
(b) All Account identity information must be real and verifiable. Each Account must be used by only one person, and each person is allowed to use only one Account. Company reserves the right to validate Provider information at any time, including but not limited to the verification of one or more official government or legal documents that confirm Provider’s identity. Failure to provide identity verification when requested is a violation of this Agreement. Provider is solely responsible for ensuring and maintaining the secrecy and security of the Account password. Provider agrees not to disclose this password to any third party and shall be solely responsible for any use of or action taken through the use of such password on Company. Provider will not allow third parties to perform any action or perform any services under Provider’s Account.
4. Term; Termination. The term of this Agreement shall begin as of the Effective Date hereof, and shall continue until such time as it is terminated by either Party, with or without cause, effective immediately upon written notice to the other Party.
5. Work for Hire.
(a) This Agreement grants no rights whatsoever to Provider in the patents, copyrights, trade secrets, trademarks, service marks or other intellectual property rights of Company whether created prior to, during or after the performance of this Agreement. Any Work created by Provider in connection with this Agreement shall be considered a “work for hire” as that phrase is defined by the U.S. copyright laws and shall be owned exclusively by and for the express benefit of Company. As such, Company shall be considered the sole author of the Work and the sole owner of the entire right, title and interest in and to the Work and all intellectual property embodied therein, including the exclusive rights to (i) reproduce, (ii) to prepare derivative works based on, (iii) to distribute to the public copies of, or (iv) to perform or display publicly, in any media now or hereafter known, the Work, in accordance with 17 U.S.C. §§ 106 and 201(b).
(b) In the event any aspect of a Work cannot be considered a “work for hire” under 17 U.S.C. § 101 for any reason, then Provider and Company agree that (i) the entire right, title and interest in and to the Work and all intellectual property embodied therein (ii) the right to register and review any aspect of a Work, in any media now or hereafter known, throughout the world, and (iii) all rights in and to the Work under the Universal Copyright Convention and the Berne Convention, shall be and hereby are assigned by Provider to Company.
(c) Provider hereby waives the existence of any statutory moral rights arising under 17 U.S.C. § 106A and any rights arising under U.S. federal or state law or the laws of any other country that convey rights of the same nature as those arising under 17 U.S.C. § 106A, or any other type of moral right that may apply to any aspect of a Work as to any and all uses and applications in which either the right of attribution or the right of integrity may be implicated. Provider further agrees not to institute, support, maintain or authorize any lawsuit on the ground that any Works or items produced or created in the future by or under the direction of Company in any way constitute an infringement of any of the rights mentioned in this Section 3 or a defamation or mutilation of any part thereof, or contain unauthorized variations, alterations, modifications, changes or translations.
6. Relationship Between Parties.
(a) It is understood and agreed by the Parties hereof that Provider is entering into this Agreement in the capacity of an independent contractor and that nothing contained in this Agreement is intended to be construed as creating any other relationship between Company and Provider. The relationship between Company and Provider is solely contractual in nature and no other relationship (be it that of an employee, or otherwise) is created hereby. Provider shall provide the services required hereunder according to Provider’s own means and methods, which shall be in the exclusive charge and control of Provider and such services shall not be subject to the control or supervision of Company, except as expressly set forth herein.
(b) Provider shall be entirely and solely responsible for Provider’s acts and the acts of Provider’s agents, employees and subcontractors (including Provider) while engaged in the performance of services hereunder.
(c) Provider shall have no right to bind Company, transact any business in Company’s name, or on behalf of Company in any manner or form, or make any promises or representations on behalf of Company. Provider shall represent himself or herself only as an independent contractor of Company.
7. Remuneration.
(a) Provider agrees and acknowledges that payment for a Work is contingent on acceptance of a Work by the User requesting the Work, which User may accept or deny in User’s sole discretion. User shall be required to notify Company of its decision to accept or reject the Work within two (2) days of such Work. In the event a User has not accepted or rejected a Work within two (2) days of receipt thereof, the User shall be deemed to have accepted the Work and Provider shall be entitled to payment as provided herein.
(b) Provider shall receive eighty-one percent (81%) of the price paid by a User for the Work, net of any taxes. In the event Provider receives a “special request” by a User to provide a Work, Provider shall receive eighty-six percent (86%) of the price paid by the User.
(c) Provider shall be paid via PayPal and Provider hereby authorizes Company to make payments using PayPal. Provider shall receive payments for accepted Works: (i) weekly (each Tuesday); (ii) every other week (on Wednesday); or (iii) monthly (on the 5th or 25th of each month). Provider is responsible for establishing a PayPal account and shall notify Company of the preferred payment option. In the event the date of payment falls on a holiday, Provider shall be paid on the next business day following the holiday.
8. Taxes. Provider recognizes and understands that, if applicable under Law, Provider will receive an IRS 1099 statement and related tax statements, and will be fully responsible to file corporate and/or individual tax returns and to pay taxes in accordance with all provisions of applicable Law. Provider will indemnify Company for any damages or expenses, including attorney's fees, and legal expenses, incurred by Company as a result of Provider's failure to make such required tax payments. Provider shall also be solely responsible for: (a) determining whether Company is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to payments hereunder, and remitting any such taxes or charges to the appropriate authorities; and (b) determining whether Company is required by applicable law to withhold any amount of the payments hereunder, notifying Company of any such requirement and indemnifying Company (either by permitting Company to offset the relevant amount against future payments or by refunding to Company the relevant amount, at Company’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Further, in the event of an audit of Company, Provider agrees to promptly cooperate with Company and provide copies of Provider’s state and federal income tax returns, and other documents as may be reasonably requested for purposes of such audit.
9. Provider Representations and Warranties.
(a) With respect to each Work, Provider represents and warrants that:
(i) Provider owns all rights in, or has acquired all necessary rights to, the Work;
(ii) the Work represents Provider’s original work of authorship and does not infringe the copyright, trademark or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
(iii) the information contained in the Work is not known by you to be false, inaccurate or misleading;
(iv) the Work does not violate any Law (as defined below);
(v) the Work is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
(vi) the Work does not incorporate materials from a third party web site, or addresses, email addresses, contact information, or phone numbers (other than your own); and
(vii) the Work does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files.
(b) Provider represents and warrants that in the performance of the services to be rendered pursuant to this Agreement, Provider will be acting for the full benefit of Company. Provider additionally represents and warrants that neither it nor any of its employees, officers, directors or agents are a party to any agreement containing any non-competition clause or other restriction, or are under any obligation otherwise inconsistent with respect to Provider’s engagement hereunder. Provider shall indemnify and hold Company and its employees, officers, directors or agents, harmless from any and all claims, suits, damages and expenses, including reasonable attorneys’ fees, arising out of any conflicting agreement or obligation.
10. Access and Use of iWriter Platform. Provider is responsible for obtaining and maintaining all equipment and services needed for access to and use of the iWriter Platform and for paying all charges related thereto. Provider agrees not to use the iWriter Platform: (a) in a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”); (b) to impersonate any person or entity or otherwise misrepresent an affiliation with a person or entity; or (c) to interfere with or disrupt the iWriter Platform or servers or networks connected to the iWriter Platform.
11. Modifications to Agreement.
(a) Company reserves the right in its sole discretion to amend this Agreement without advance notice to you. Modifications to this Agreement will be posted on the Site or made in compliance with any notice requirements set forth in this Agreement. If any modification is not acceptable to you, your only recourse is to cease using the iWriter Platform. By continuing to use the iWriter Platform after Company has posted any modifications on the Site or provided any required notices, you accept and agree to be bound by the modifications.
(b) Except only as permitted above, no modification or amendment to this Agreement shall be binding upon either party unless in a written instrument signed by a duly authorized representative of each party (and, for the purposes of this Section, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles and electronically transmitted .pdf versions of executed documents).
12. Disclaimers. THE IWRITER PLATFORM IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE IWRITER PLATFORM IS WITH PROVIDER. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE IWRITER PLATFORM (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO WARRANTY THAT THE IWRITER PLATFORM WILL MEET PROVIDER’S REQUIREMENTS OR THAT THE IWRITER PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE IWRITER PLATFORM WILL BE CORRECTED. COMPANY MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE IWRITER PLATFORM OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE IWRITER PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PROVIDER THROUGH THE IWRITER PLATFORM OR FROM COMPANY, ITS PARENTS, SUBSIDIARIES, OR OTHER AFFILIATED COMPANIES, OR ITS OR THEIR SUPPLIERS (OR THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OF ANY SUCH ENTITIES) (COLLECTIVELY, “THE COMPANY PARTIES”) SHALL CREATE ANY WARRANTY. COMPANY DISCLAIMS ALL EQUITABLE INDEMNITIES.
13. Limitation of Liability. IN NO EVENT WILL ANY OF THE COMPANY PARTIES BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR (B) ANY DAMAGES WHATSOEVER IN EXCESS OF ONE HUNDRED UNITED STATES (US$100.00) DOLLARS (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF REVENUES, LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSSES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR PROVIDER’S USE OF THE IWRITER PLATFORM (INCLUDING, WITHOUT LIMITATION, USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE IWRITER PLATFORM), WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY AND EVEN IF ANY COMPANY PARTY HAS BEEN ADVISED (OR SHOULD HAVE KNOWN) OF THE POSSIBILITY OF SUCH DAMAGES.
14. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply to you. To the extent that any Company Party may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Company Party’s liability shall be the minimum permitted under such applicable law.
15. Indemnification. Provider shall indemnify, defend and hold harmless Company and any Company Party from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (a) any claim, judgment, or adjudication that any Work submitted by Provider infringes the intellectual property or other rights of any third party, (b) Provider’s use of the iWriter Platform or the Site, or (c) Provider’s performance under this Agreement.
16. Waiver of Breach. The waiver by Company of a breach of any provision of this Agreement by Provider shall not operate or be construed as a waiver of any subsequent breach by Provider.
17. Notices. You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the iWriter Platform. Notices hereunder shall be invalid unless made in writing and given (x) by Company via email (in each case to the address that you provide), (y) a posting on the Site or (z) by you via the support desk: http://www.bryxensoftware.com/support/ or to such other addresses as Company may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
18. Assignment. Company may assign its rights, interests, and obligations in this Agreement at any time. The rights and obligations under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of Company. The services to be performed by Provider under this Agreement are personal in nature and cannot be assigned by Provider, without Company’s prior written consent.
19. Governing Law. This Agreement and the provisions thereof shall be construed according to the laws of the State of Indiana, without giving effect to conflict of law principles and excluding the United Nations Conventions on Contracts for the International Sale of Goods (CISG).
20. Severability. The terms of this Agreement are severable. If a clause herein is declared illegal or unenforceable by a court or body of competent jurisdiction, the remainder of the Agreement shall not thereby fail or be rendered void, but shall continue in full force and effect, with only the illegal or unenforceable provision rendered null and void and severed from this Agreement.
21. Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the matters contained herein.
22. No Third Party Beneficiary Rights. This Agreement shall: (a) create rights and obligations only between Company and Provider; and (b) not create any rights for any other parties. For the avoidance of doubt, without any limitation, no User shall be entitled to enforce the terms of this Agreement.
