Publishing Program Agreement
This 365 Network LLC Publishing Program Agreement (“Agreement”) is hereby made between 365 NETWORK LLC Inc., (“365 NETWORK LLC”) and the individual submitting original articles, blogs, photo, video and/or other original content (“Content”) to 365 NETWORK LLC hereunder (“You”) (365 NETWORK LLC and You, each a “Party” and together, the “Parties”). 365 NETWORK LLC hereby grants You the privilege to participate in 365 NETWORK LLC’s program to create a place for users to share their experiences, thoughts, reviews and commentary (“Program”) pursuant to the terms of this Agreement.
BY AGREEING TO THE TERMS OF THIS AGREEMENT AND/OR BY SUBMITTING CONTENT HEREUNDER, YOU EXPRESSLY AGREE AND CONSENT TO BE BOUND BY ALL TERMS OF THE PROGRAM, THIS AGREEMENT, 365 NETWORK LLC’S TERMS OF SERVICE (“TOS”), PRIVACY POLICY AND 365 NETWORK LLC’S PUBLISHING TERMS SET FORTH IN SECTION 2 OF EXHIBIT A HERETO (“PUBLISHING TERMS”). By accepting this agreement electronically you acknowledge that this is as legally binding as any signed agreement.
Program. The term of this Agreement shall begin upon you accepting the terms of this Agreement and shall continue in force and effect until terminated as provided herein. 365 NETWORK LLC may terminate or change this agreement at its discretion by providing notice to you. If 365 NETWORK LLC eliminates the Program, this Agreement shall terminate. You are responsible for checking all terms and conditions of the Program, including without limitation the TOS and Privacy Policy, by periodically checking the 365 NETWORK LLC website. If you participate after changes are posted on the 365 Network website, you agree to all the changes. Termination of this Agreement shall not terminate any license rights to Your Content 365 NETWORK LLC acquired prior to termination.
Submission of Content. You may submit Your Content to 365 NETWORK LLC for display on the 365 NETWORK LLC website created specifically to publish Content under the Program currently located at (“365 NETWORK LLC Publishing Site”) and/or on another 365 NETWORK LLC website in one of two ways: (a) in response to a topic suggested by 365 NETWORK LLC and/or (b) on a topic of you choice. By submitting Your Content, You give 365 NETWORK LLC the opportunity to review Your Content during the Holding Period (defined below) and, if 365 NETWORK LLC accepts Your Content, to determine if 365 Network LLC wishes to grant an exclusive license. You agree that if 365 Network grants you an exclusive license, all rights to your content become the exclusive property of 365 Network LLC to use at its discretion.
Holding Period. For any Content you submit, 365 NETWORK LLC has the right to issue you an exclusive license. The duration of this option period shall be seven business days (the “Holding Period”) after the due date during which time 365 NETWORK LLC will either reject Your Content in its sole discretion, or accept Your Content and issue an exclusive license. During the Holding Period, You agree not to publish Your Content elsewhere, except that You may continue to publish any of Your Content that was previously published. 365 NETWORK LLC will notify you of the status of all of your submitted Content.
Exclusive License. 365 NETWORK LLC will acquire an Exclusive License if it decides to purchase your content. (a) The Exclusive License grants 365 NETWORK LLC broad rights to Your Content, including being able to publish your Content on 365 NETWORK LLC and/or third party sites on an ongoing basis and You waive Your right to assert certain claims that you may have. 365 NETWORK LLC will pay an upfront payment for an Exclusive License. You understand that (a) 365 NETWORK LLC may, at any time, select one or more pieces of Your submitted Content or none at all for an Exclusive License, and (b) 365 NETWORK LLC may acquire an Exclusive License to Your Content at any time after making its initial choice by paying You the applicable amount for an Exclusive License.
Previously Published Content. If You have previously published Your Content (e.g., published in a newspaper or other website), 365 Network will not grant you an exclusive license.
Unpublished Content on an 365 NETWORK LLC Suggested Topic. Each 365 NETWORK LLC suggested topic will state the price at which 365 NETWORK LLC is willing to acquire an Exclusive License to such Content (“365 NETWORK LLC Offer Price”). If You submit Your Content to 365 NETWORK LLC in response to an 365 NETWORK LLC suggested topic and has never been published before and 365 NETWORK LLC accepts Your Content, 365 NETWORK LLC will elect to acquire (a) an Exclusive License to Your Content in exchange for the 365 NETWORK LLC Offer Price, for publishing Your Content on the 365 NETWORK LLC Publishing Site and/or another 365 NETWORK LLC website.
Unpublished Content on Your Own Topic. If You submit Your Content NOT in response to an 365 NETWORK LLC suggested topic and Your Content has never been published before, You may indicate the following upon submission: (a) the payment for which You are willing to grant 365 NETWORK LLC an Exclusive License to Your Content (“Your Offer Price”). 365 NETWORK LLC will do one of the following: (1) reject Your Content, (2) accept Your Content and acquire an Exclusive License to Your Content in exchange for paying You Your Offer Price, in exchange for publishing Your Content on the 365 NETWORK LLC Publishing Site and/or another 365 NETWORK LLC website.
Removal of Content. 365 NETWORK LLC shall have the right to remove Your submitted Content at will.
Terms and Conditions. The terms and conditions below are a part of this Agreement.
TERMS AND CONDITIONS
1. Participation in Program.
Independent contractor status. Any payments made by 365 Network LLC to you are as an independent contractor. You are responsible for reporting all income received from 365 Network LLC to the I.R.S. and your home state. 365 Network LLC is required to submit 1099 forms to anyone who receives $600 or more in a calendar year. 365 Network LLC cannot pay you in excess of $600 in a calendar year until you submit a W9 form.
Non-Payment. You agree to notify 365 NETWORK LLC of any disputed or missing payment within thirty (30) days of the date that payment is or should have been received.
Termination of Program. In the event 365 NETWORK LLC terminates the Program, 365 NETWORK LLC shall pay all amounts due to You within ninety (90) days after termination.
2. Publishing Terms and Multimedia Content.
Publishing Terms. You represent and warrant that (a) You are at least the age of consent in the location where You are submitting Content (18 years of age in the U.S.), are not an employee of 365 NETWORK LLC or any of its subsidiaries, and are otherwise competent under applicable law to enter into a binding and enforceable legal agreement, (b) You have, and have provided to 365 NETWORK LLC the requisite information for payment via a current PayPal account, (c) You understand that any determination of whether there has been a violation of these Publishing Terms, and whether any action is warranted, is made by 365 NETWORK LLC in its sole discretion, (d) You will comply with the following Publishing Terms and all Content and attribution submitted by You pursuant to this Agreement:
A. Is in English and is well organized and well written.
B. Is your own, original work, and does not infringe on or violate: (i) all intellectual property rights of any party, (ii) any other proprietary or other right of any third party, including but not limited to any third party rights to privacy or publicity, or any music performing or other music-related right, or (iii) any applicable law or regulation.
C. Does not contain music that is not your own original music or is not in the public domain or provided by 365 NETWORK LLC to You expressly for use within Your Content.
D. Does not contain any scandalous, libelous or unlawful matter or material.
E. Does not contain personal information not your own and/or posted without permission.
F. Does not victimize, harass, degrade or intimidate an individual or group of individuals on the basis of age, disability, ethnicity, gender, race, religion or sexual orientation.
G. Does not violate any local, state, or federal law and does not incite illegal activity.
H. Does not contain sexually explicit images of an obscene nature and/or material harmful to minors.
I. Does not contain any advertisements, promotions or commercial messages, especially advertisements and/or promotions for the sale of products or services, and other products and services 365 NETWORK LLC deems inappropriate.
J. All attribution provided by you for Your Content is accurate.
K. Does not contain Content intended to provide professional advice that requires a license or is regulated by law.
L. Does not contain Content to solicit, recommend, endorse, or offer to buy or sell any securities or any other financial instruments.
Multimedia Content. In the event You submit non-text Content as part of Your submitted Content, You will be responsible for obtaining any and all necessary rights, licenses, permissions, consents and the like, including but not limited to releases for voices, images and appearances with regard to all video, audio, photograph, graphics, illustration or other multimedia content (collectively, “Multimedia Content”). In addition, You shall be solely responsible for securing, administering and paying, at Your sole expense, all third-party publishing, copyright, guild and other rights required for 365 NETWORK LLC to use, reproduce and distribute Multimedia Content supplied by You as part of Your submitted Content, and You will be responsible for paying fees or expenses, if any, resulting from rights claims from such third parties.
365 NETWORK LLC Publishing Platform. You may be given access to 365 NETWORK LLC content and/or publishing or other platforms and applications to use to submit and/or create Your Content submitted to 365 NETWORK LLC (“collectively, “365 NETWORK LLC Publishing Platform”). You will keep strictly confidential any usernames and passwords for access to the 365 NETWORK LLC Publishing Platform (or any portion thereof), shall not allow any other person to access or use the 365 NETWORK LLC Publishing Platform utilizing Your username or password, and You will access or use the 365 NETWORK LLC Publishing Platform solely for the purpose of submitting and/or managing Your Content for the Program to 365 NETWORK LLC hereunder. If the security of Your username(s) or password(s) is compromised in any way, or if You suspect that it may be, You shall immediately contact 365 NETWORK LLC. 365 NETWORK LLC shall have the right at any time and for any reason to suspend or terminate Your access to the 365 NETWORK LLC Publishing Platform and 365 NETWORK LLC shall have no liability for any losses, including without limitation, of data, content, or revenue. If a license acquired by 365 NETWORK LLC to Your Content terminates or if You publish Your exclusive Content elsewhere, You shall remove any content or other materials contained in Your Content that was provided by 365 NETWORK LLC or that was created with the aid of the 365 NETWORK LLC Publishing Platform (or any portion thereof).
3. Independent Contractor Status
Manner of Performance. You have the sole right to control and direct the means, manner and method by which Your Content is created, and may do so at any place or location and at such time as You may reasonably determine and with the help of any of Your employees, independent contractors or any other assistants You deem appropriate (“Your Assistants”), provided that You shall be solely responsible for hiring, firing and compensating Your Assistants. By signing this Agreement You are under no obligation to submit any Content; rather, by signing the Agreement You are agreeing to the terms and condition that will govern any Content that You elect to submit to 365 NETWORK LLC. You are solely responsible for obtaining any facilities or other equipment and paying any expenses associated with the creation of your Content.
Independent Contractor; No Agency. Each Party is an independent contractor relative to the other. Neither Party shall be deemed for any purpose to be an employee of the other. Neither Party shall be responsible to the other or any governing body for any payroll-related taxes related to the performance of services hereunder by the other, including but not limited to, withholding or other taxes related to federal or state income tax, social security benefits or unemployment compensation. You further represent and warrant that You qualify as an independent contractor under the provisions of the Internal Revenue Code and its common law rules and are filing all required forms and making all necessary payments appropriate to Your independent-contractor tax status. Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability on behalf of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
No Benefits. As a material term of this Agreement, You agree that the compensation arrangement established under this Agreement represents Your entire compensation for any Content that You elect to create and submit hereunder. You agree that You are not eligible for, and shall not participate in, any of 365 NETWORK LLC’s employee benefit plans or programs. If for any reason You are deemed to be a statutory or common-law employee of 365 NETWORK LLC by any governmental agency, court, or other entity, You hereby waive any right to, and agree to neither seek nor accept, any benefits under the Benefits Plans, even if by the terms thereof You or Your Assistants might be eligible for such benefits.
4. Taxes and Fees.
You shall be responsible for determining the applicability of any sales, use, excise, or similar transactional taxes that may be applicable to the license or sale of Your submitted Content, if any. 365 NETWORK LLC shall not be liable for taxes based on Your net income, items of tax preference, withholding, net worth, capital stock, franchise, property or conduct of business, or similarly-based taxes. You shall pay all taxes collected from 365 NETWORK LLC to the appropriate taxing authority. 365 NETWORK LLC will not be responsible to You or any governing body for any payroll-related taxes including but not limited to, withholding or other taxes related to federal or state income tax, social security benefits, or unemployment compensation. You shall bear any and all costs, and shall indemnify 365 NETWORK LLC pursuant to the “Indemnity” section of this Agreement. 365 NETWORK LLC shall be entitled to contest, pursuant to applicable law and at its own expense, any taxes it is ultimately obligated to pay, and You shall reasonably cooperate with any such contest.
You are further responsible for any and all transaction fees or other costs incurred by 365 NETWORK LLC in connection with any payment made to You through PayPal and You acknowledge and agree that any such amounts will be deducted from amounts otherwise due to You.
5. Licenses.
Exclusive License. You hereby grant to 365 NETWORK LLC an exclusive, worldwide, irrevocable, ongoing, fully paid-up, royalty free, transferable right and license, with right to sublicense, to use, distribute, reproduce, display, perform, store, modify, edit, create derivative works based upon, sell, exploit, and promote Your Content (or any portion thereof), with or without attribution to You, for any purpose and in all forms and all media whether now known or to become known in the future, as 365 NETWORK LLC may determine in its sole discretion, including, without limitation, on the Internet and via broadcast television (“Exclusive License”). You will not display or allow any third party to display Your Content anywhere on the Internet or in any other form or media. You represent that Your Content has not been previously, and is not currently, displayed on the Internet or in any other form or media.
You hereby agree and acknowledge that under this Exclusive License, 365 NETWORK LLC shall have and is hereby granted (i) all rights to any revenue and income derived from Your Content, (ii) any and all rights to assert claims of infringement (past, present, or future) against any third party arising out of or in relation to Your Content, and (iii) any and all other related rights of whatever kind or nature. Further, pursuant to this Exclusive License, You hereby waive and agree never to assert any and all intellectual property rights You may have in or with respect to Your Content in connection with 365 NETWORK LLC’s or any sublicensee’s use thereof, including without limitation any moral rights or other literary property or authors’ rights.
Name and Likeness. You hereby grant 365 NETWORK LLC a ongoing, exclusive, royalty-free, irrevocable license to distribute, market and otherwise exploit, in connection with Your Content and the promotion of Your Content, Your name, likeness and voice on the 365 NETWORK LLC websites, and in any and all forms of media now known or hereafter devised, including but not limited to the Internet, broadcast, non-broadcast, pay, cable and network television, satellite and closed circuit transmission, in-flight video, home entertainment (including home video, CD-ROM in current and future formats, and online services, both commercial and non-commercial) linear, digital and interactive formats and printed transcripts as 365 NETWORK LLC deems appropriate in its sole discretion. In addition to the indemnities set forth in the Agreement, You hereby release 365 NETWORK LLC and hold 365 NETWORK LLC harmless from and against (i) any liability based on any personal property, residual, re-use or other payment by virtue of 365 NETWORK LLC’s use of Your name, voice, likeness or biographical material, exhibition, telecast or distribution thereof or any portion thereof; and (ii) any claim for further consideration or compensation for the rights granted hereunder. You shall not have any right to any royalty or sums exceeding the fees set forth in this Agreement.
6. Confidentiality.
You acknowledge that Confidential Information may be disclosed to You during the course of this Agreement. You agree that You will take reasonable steps, at least substantially equivalent to the steps You take to protect Your own proprietary information, during the term of this Agreement, and for a period of three (3) years following expiration or termination of this Agreement, to prevent the disclosure of 365 NETWORK LLC’s Confidential Information, other than to Your employees, affiliates, subsidiaries or other agents who must have access to such Confidential Information for You to create any Content for submission hereunder or to exercise Your rights hereunder, who will each agree to comply with this section. As used herein, “Confidential Information” shall mean any information relating to or disclosed in the course of the Agreement, which is, or should be reasonably understood to be, confidential or proprietary, including, but not limited to, the material terms of this Agreement, information about 365 NETWORK LLC users, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data. “Confidential Information” shall not include information (a) already lawfully known to or independently developed by the receiving Party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.
7. Representations and Warranties.
You represent, warrant and agree that: (a) Your Content will comply with the Publishing Terms, (b) You will not publish, broadcast, display or distribute in any media, or allow others to publish, broadcast, display or distribute in any media, any Content to which 365 NETWORK LLC has acquired an Exclusive license without the prior written consent of 365 NETWORK LLC, and (c) You shall comply with all applicable local, state and federal laws in creating Your Content and submitting it to 365 NETWORK LLC hereunder.
Each Party represents and warrants to the other Party that: (a) such Party has the full right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the entering into of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (c) when entered into by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (d) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
You acknowledge that 365 NETWORK LLC is not currently a signatory to any collective bargaining or other agreement that would require payments to AFTRA, SAG, or any other union or guild in connection with this Agreement.
8. Indemnity.
You shall defend, indemnify and hold harmless 365 NETWORK LLC, its officers, directors, agents, affiliates, distributors, franchisees and employees from any and all loss and third party claims, demands, liabilities, costs or expenses, including without limitation reasonable attorneys’ fees and expenses (“Liabilities”) resulting from (a) Your breach of any obligation, duty, representation or warranty contained in this Agreement, (b) Your payment or nonpayment of compensation or salary asserted by any of Your Assistants, (c) any claim that You or any of Your Assistants stands in any relationship with 365 NETWORK LLC other than as an independent contractor, including but not limited to employment, co-employment and joint employment, (d) any governmental determination that You have failed to maintain Your independent-contractor status or litigation determining a change of Your independent-contractor status, including liability for taxes and other penalties assessed upon 365 NETWORK LLC because of Your change or lack of independent contractor status, (e) acts or omissions of You or Your Assistants in connection with creating Your Content and submitting it to 365 NETWORK LLC to the extent resulting in death, personal injury, or damage to real or tangible personal property, and (f) the fault, negligence, or willful misconduct of You or Your Assistants.
9. Limitation of Liability.
EXCEPT IN CONNECTION WITH A BREACH OF THE CONFIDENTIALITY OR INDEMNITY PROVISIONS HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. ANY AND ALL LIABILITY OF 365 NETWORK LLC TO YOU WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES AND WILL BE CAPPED AT THE AMOUNT OF ALL PAYMENTS OWED WITHIN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM.
10. Communications.
Duty to Inform. You shall promptly inform 365 NETWORK LLC of any information related to Your submitted Content which could reasonably lead to a claim, demand or liability of or against 365 NETWORK LLC and/or its affiliates by any third party, including without limitation any claim of infringement by a third party.
Statements to Third Parties. During the term of this Agreement, You shall not make, publish, or otherwise communicate, or cause to be made, published, or otherwise communicated, any disparaging remarks whatsoever to any third parties concerning 365 NETWORK LLC or its affiliates, directors, officers, employees or agents, including without limitation, this Program or 365 NETWORK LLC’s business projects, business capabilities, performance of duties and services or financial position.
Publicity. You agree that You will not, without prior written consent of 365 NETWORK LLC in each case, use in advertising, publicity, or otherwise the name of 365 NETWORK LLC, or images of 365 NETWORK LLC facilities and employees, or refer to the existence of this Agreement in press releases, advertising, or materials distributed to prospective customers.
Electronic Communications. YOU AGREE TO TRANSACT WITH 365 NETWORK LLC ELECTRONICALLY. YOUR AFFIRMATIVE ACT OF SUBMITTING YOUR REGISTRATION INFORMATION AND/OR CONTENT CONSTITUTES YOUR SIGNATURE TO THIS AGREEMENT. THIS AGREEMENT SHALL HAVE THE SAME FORCE AND EFFECT AS AN AGREEMENT IN WRITING. YOU FURTHER AGREE TO RECEIVE ALL REQUIRED NOTICES FROM 365 NETWORK LLC ELECTRONICALLY. 365 NETWORK LLC MAY PROVIDE NOTICES TO YOU ELECTRONICALLY (1) VIA E-MAIL, IF YOU HAVE PROVIDED 365 NETWORK LLC WITH A VALID EMAIL ADDRESS, (2) VIA POSTING THE NOTICE ON A WEBSITE DESIGNATED BY 365 NETWORK LLC FOR THIS PURPOSE, regardless of whether You read the Notice or actually receive delivery.
11. Miscellaneous.
This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of California except for its conflicts of laws principles, and each Party irrevocably consents to the exclusive jurisdiction of the courts situated in California over all claims and all actions to enforce such claims or to recover damages or other relief in connection with such claims. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the Party subject to enforcement of such amendment. You shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of 365 NETWORK LLC. The Confidentiality and Indemnity clauses shall survive the expiration or termination of this Agreement
