CONTENT USER AGREEMENT
This Content User Agreement (“Agreement”) is by and between the company or individual specified during this online registration process (“User” or “you”) and Bryxen Software, Inc., an Indiana corporation (“Company”). User 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 websites with web content writers, who provide the desired content (the “Content”) (collectively, the “iWriter Platform”). User acknowledges and understands that the iWriter Platform posts Content submitted by independent freelance writers (not Company employees), who write for Company as independent consultants on a work for hire basis. Company does not review the Content submitted by these independent freelance writers, and Company makes no representations or warranties with respect to the authenticity or accuracy of the Content or that the Content does not contain any defamatory or libelous material.
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 REQUEST FOR CONTENT 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 users.
(b) User shall not be eligible to use the iWriter Platform if User is: (a) 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; (b) 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 (c) an entity, an 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 information, comments, feedback or other content on the Site or the iWriter Platform, including any comments or feedback relating to other content users or writers, Company or any other third party. You may be held legally responsible for damages suffered by other content users, content writers, 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 Site or the iWriter Platform.
(b) Company will not be held legally responsible for any 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 Content for accuracy or reliability. However, Company reserves the right to remove or restrict access to any Content or other information posted or made available on the Site or the iWriter Platform 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 this Agreement may result in suspension or termination.
3. Registration.
(a) User must register an account (“Account”) to make use of the iWriter Platform. All information provided by User with respect to the Account must be true, accurate and complete. Company reserves the right to verify any and all information provided by User with respect to User’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 User information at any time, including, but not limited to, the verification of one or more official government or legal documents that confirm User’s identity. Failure to provide identity verification when requested is a violation of this Agreement. User is solely responsible for ensuring and maintaining the secrecy and security of the Account password. User 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. User will not allow third parties to perform any action or perform any services under User’s Account.
4. Term; Termination. The term of this Agreement shall begin on the date you check the box and click the “submit” button and shall continue until such time that this Agreement is terminated by either Party. Either Party may terminate this Agreement, with or without cause, by providing the other Party written notice of termination.
5. Requests for Content. User may post requests for Content on the iWriter Platform (each a “Request”) at any time, specify the writers who receive such Requests, and identify the topics and key terms for such Content (for more information on how to post Requests on the iWriter Platform, please click here). User has no obligation to accept any Content proposed in response to a Request for Content, and User shall have no right to use any proposed Content until User accepts the Content. The ultimate amount of the license fee User shall pay in the event of an Acceptance (as defined below) will vary depending upon the specifications in the Request.
6. Preview Period. User shall have three (3) days to preview Content submitted in response to a Request (the “Preview Period”) before deciding whether to reject or accept and license the Content. Should user approve of a particular submission of Content over the iWriter Platform in response to a Request, then User should accept the Content (each, an “Acceptance”). Company hereby disclaims any duty to review Content submitted by a writer in response to any Request posted by User, and User shall be solely responsible for reviewing the Content for appropriateness of subject matter and to ensure that the Content does not contain any defamatory or libelous subject matter. Upon Acceptance, User agrees to be solely responsible for any action or reaction resulting from User’s publication of the Content. Upon Acceptance, Company shall grant User an exclusive license to the accepted Content (as set forth in Section 7 hereof), and User shall be obligated to pay Company the license fee associated with the Acceptance in accordance with Section 8 hereof. Failure by User to accept or reject the Content submitted in response to a Request prior to expiration of the Preview Period will be deemed an Acceptance by User of the Content, and User’s PayPal’s™ account will be charged the license fee payment associated with the accepted Content.
7. License Grant. Immediately following Acceptance and payment to Company of the applicable license fee, Company shall grant User an exclusive, non-transferable license to reproduce, distribute, prepare derivative works of, publicly display and publicly perform the accepted Content. Notwithstanding anything to the contrary herein, Company shall retain all ownership and property rights with respect to the Content.
8. License Fee. Upon Acceptance of Content, User authorizes Company to process payment of the license fee associated with each Acceptance vis-à-vis User’s PayPal™ account. User is solely responsible for establishing a PayPal™ account as part of the iWriter Platform registration process and shall not hold Company responsible for any claims arising out of or relating to User’s PayPal™ account. Failure of User to timely pay the license fee upon Acceptance will be deemed a rejection of the Content.
9. Unauthorized Use. User’s use or publication of any Content prior to Acceptance and payment of the license fee is strictly prohibited. User shall be liable for any damages resulting from User’s unauthorized use of any Content prior to Acceptance and payment, including, without limitation, any costs or expenses incurred by Company to prosecute any claims related to User’s unauthorized use or infringement, including, but not limited to, reasonable attorneys’ fees.
10. Access and Use of iWriter Platform. User 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. User 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.
(a) Website. 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 USER. 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 USER’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 USER 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.
(b) Content. THE CONTENT IS PROVIDED “AS IS” AND COMPANY HAS NOT REVIEWED THE CONTENT. COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION OR WARRANTY THAT THE CONTENT DOES NOT INFRINGE THE COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS, PRIVACY RIGHTS, OR ANY OTHER LEGAL OR MORAL RIGHT OF ANY THIRD PARTY; THAT THE CONTENT IS ACCURATE, AND NOT FALSE OR MISLEADING; THAT THE CONTENT IS NOT DEFAMATORY, LIBELOUS, HATEFUL, RACIALLY, ETHNICALLY, RELIGIOUSLY, OR OTHERWISE BIASED OR OFFENSIVE, UNLAWFULLY THREATENING, OR UNLAWFULLY HARASSING TO ANY INDIVIDUAL, PARTNERSHIP, COMPANY OR CORPORATION; THAT THE CONTENT IS NOT VULGAR, PORNOGRAPHIC, OBSCENE, OR INVASIVE OF ANOTHER’S PRIVACY; THAT THE CONTENT DOES NOT INCORPORATE MATERIALS FROM ANOTHER WEBSITE. FURTHER, COMPANY DOES NOT REPRESENT OR WARRANT THAT THE CONTENT IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES.
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, THE IWRITER PLATFORM (INCLUDING, WITHOUT LIMITATION, USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE IWRITER PLATFORM), OR USE OF THE CONTENT, 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. User 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 Content displayed by User infringes the intellectual property or other rights of any third party or is defamatory or libelous, (b) User’s use of the iWriter Platform or the Site, or (c) User’s performance under this Agreement.
16. Waiver of Breach. The waiver by Company of a breach of any provision of this Agreement by User shall not operate or be construed as a waiver of any subsequent breach by User.
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 to: 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.
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 User; and (b) not create any rights for any other parties. For the avoidance of doubt, without any limitation, no other person, including, without limitation a writer of Content, shall be entitled to enforce the terms of this Agreement.
