This Demand Media Blog Distribution Network Agreement (the "Agreement") is entered into between Demand Media, Inc., a Delaware corporation with its principal place of business at 1333 Second Street, Suite 100, Santa Monica, CA 90401, U.S.A. ("Demand Media", "Demand Studios", "we", "us" or "our") and yourself ("Contributor", "you" or "your"), effective as of your execution and submission of this Agreement by clicking the "I Agree" box or "Submit Application" link after reading this Agreement (the "Effective Date"). You acknowledge that this Agreement is an enforceable contract and intended to be a signed writing with the same force and effect as a traditional paper document signed in ink.
THIS AGREEMENT ALSO CONTAINS A PROVISION FOR BINDING ARBITRATION OF ALL DISPUTES.
In consideration of the mutual promises contained herein, you and we hereby agree as follows:
- Nature of Services. The DM Blog Network is a new platform designed to help bloggers build their online brand, drive more traffic to their blog, and position themselves as authoritative or insightful commentators within a particular topic or industry. By participating in the DM Blog Network, your blog may be distributed through our network of owned and operated and partner websites (such sites, the "Demand Media Network"). You may also be eligible to earn money by participating in the DM Blog Network, as further described in Section 6 of this Agreement. Your application and all materials in support of your application to enroll in the DM Blog Network must be complete, accurate, and truthful. Your application must be reviewed and approved by Demand Media before you are eligible to participate. Your blog, inclusive of its individual posts, articles, updates, or other contributions, are referred to herein as your "Contribution". All Contributions must be an original work of authorship and must meet the quality standards set by Demand Media.
- Grant of License. You retain sole authorship and ownership of any Contributions submitted by you to us under the DM Blog Network program. Subject to the terms of this Agreement, you grant to Demand Media and its affiliates a non-exclusive, worldwide, sublicensable license to reproduce, distribute, make derivative works of, perform, display and disclose each such Contribution (and derivative works thereof) for the purposes of (a) adapting the Contribution to fit within the Demand Media Network without substantially changing its original meaning, and (b) distributing the Contribution (and derivative works thereof) to the Demand Media Network.
- Demand Media Responsibilities.
- Attribution. In the event that your Contribution is published to the Demand Media Network, you will receive attribution to the site from which your blog originates. The exact format and placing of the attribution is subject to Demand Media's (and the publisher site's) discretion.
- Revenue Share. In the event that your Contribution(s) are eligible to participate in the revenue share program described in Section 6 of this Agreement, Demand Media will be responsible for paying you your earnings from participating in the DM Blog Network.
- Your Responsibilities. In addition to the representations and warranties set forth in this Agreement, you will be solely responsible for the acquisition of any and all third party clearances, permissions, licenses, and payments which are necessary in connection with Demand Media's, its affiliates', or any third party publisher's exercise of any license granted in Section 2 of this Agreement, including, without limitation:
- the use of any copyrighted or trademarked materials;
- the use of any names, likenesses, biographical materials, photos or images; and
- the payment of any and all applicable guild fees, residuals, fees or royalties payable under any collective bargaining agreement or otherwise.
- Status; No Employment Relationship. You are an independent contractor and are not authorized to make representations or commitments to third parties on behalf of us or our affiliates. This Agreement does not create an employment or agency relationship. Nothing in this Agreement shall render you an employee, worker, agent, or partner of Demand Media and you shall not hold yourself out as such.
- Earnings and Payments. To participate in our revenue share program, you must be a U.S. citizen and submit all requisite tax information before you can begin to accrue earnings. You are not eligible to accrue any earnings under the DM Blog Network until such tax information has been received by Demand Media.
In general, the factors that may affect how much revenue you may earn for your blogs include, directly or indirectly, the following:
- Popularity of the blog posts;
- Number and quality of inbound links to the content;
- Topicality and newsworthiness of the content;
- Usefulness and applicability of the content;
- User response to your content, such as positive reviews and comments;
- Quality of the writing.
Any money you earn during a calendar month for eligible Contributions will be reflected in your account within approximately thirty (30) days after the end of the calendar month in which it was accrued. For example, any money you earn on June 30 and July 1 will be reflected in your account by approximately July 30 and August 30, respectively.
You are not eligible to receive any payments for the earnings reflected in your account until your accrued total balance of such earnings is at least ten U.S. dollars (US$10). All payments to you will be made in U.S. dollars to your designated PayPal account or other payment system acceptable to Demand Media as provided in your account. You will not be entitled to receive interest or late charges on any earnings or payments. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information in your account.
Notwithstanding the foregoing, we will have no obligation to pay you any earnings reflected in your account, and may deduct or withhold such earnings, if we determine or reasonably suspect, in our sole discretion, that such earnings have resulted from any acts or omissions intended or designed to improperly increase your earnings under the DM Blog Network program.
If you dispute any payment made by Demand Media to you under the DM Blog Network program, you must notify us in writing within ninety (90) days of receiving such payment. Failure to notify Demand Media in this manner will result in your waiver of any claim relating to such dispute. Demand Media will use reasonable efforts to resolve any such dispute in good faith, but Demand Media's resolution will be final and binding upon you.
- Term. This Agreement begins on the Effective Date and will continue until terminated by either party with 10 days' prior written notice to the other party. Demand Media reserves the right to terminate the DM Blog Network program, in whole or in part, at any time and for any reason. Notwithstanding anything to the contrary, if Demand Media chooses to terminate the program as set forth in this paragraph, you will still be entitled to the earnings that have accrued to your account.
You agree and acknowledge that your participation in the program will automatically terminate upon your death. Demand Media has the right to terminate and prohibit, at its sole discretion, your participation in the program and any other services of Demand Media and its affiliates, at any time upon its belief or discovery that (a) the information you provided during the enrollment process is incomplete, fraudulent or inaccurate; or (b) you have breached any of your obligations under, or failed to comply with, this Agreement. If your account is terminated by Demand Media due to your failure to comply with this Agreement, you will forfeit the earned balance in your account and Demand Media will have no obligation to pay you any of those earnings. Section 2 ("Grant of License"), Section 4 ("Your Responsibilities"), Section 8 ("Confidentiality"), Section 9 ("Representations and Warranties"), Section 10 ("Indemnification"), Section 11 ("Limitation of Liability"), Section 12 ("Choice of Law; Arbitration"), Section 15 ("Severability") and any other term that should reasonably be construed as surviving the termination of this Agreement, will survive termination.
- Confidentiality. During the term of this Agreement, you may have access to our or our affiliates' confidential and proprietary information ("Confidential Information"). During this Agreement and for two (2) years after termination, you will not disclose or use our Confidential Information for any purpose other than as necessary to perform an Assignment. 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 and warrant that:
- you are at 18 years of age or older, and that you have the right and obtained all authorizations and consents necessary to execute and enter into this Agreement and perform your obligations;
- you will comply with all applicable laws;
- your Contribution (i) is original, (ii) does not and will not defame or disparage any person or entity (or their goods, services or business) 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;
- you have not conveyed and will not convey or purport to convey any exclusive right, title or interest in and to the Contribution to any third party, nor do anything else to impair in any way our license in and to the Contribution;
- if you learn of any claims alleging that any Contribution infringes any third party's rights or is unlawful, you will immediately notify us;
- all of the information you have provided and will provide to us in connection with this Agreement is and will at all times be true and correct and not contain any material omissions; and
- you will comply with any policies and procedures posted by us on the Website or otherwise provided to you in writing from time to time.
- Indemnification. You agree, at your own expense, to indemnify, defend and hold harmless Demand Media, its affiliates and each of their respective officers, directors, employees, representatives, licensees and agents from and against and in respect of any and all claims, liabilities, allegations, suits, actions, investigations, judgments, deficiencies, settlements, inquiries, demands or other proceedings brought against Demand Media, its affiliates or any of their respective officers, directors, employees, representatives, licensees or agents, including without limitation reasonable legal fees and expenses, relating to, based upon, incident to, arising from, or in connection with (a) your breach of any of your representations or warranties herein; or (b) any claim or allegation that the Contribution infringes in any manner any intellectual property right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party.
- 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. OUR AGGREGATE LIABILITY IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY, SHALL NOT EXCEED THE AMOUNT PAYABLE BY US TO YOU UNDER THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OUR LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR FOR FRAUD.
- 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, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY BINDING ARBITRATION IN A PROCEEDING ADMINISTERED BY JAMS PURSUANT TO ITS STREAMLINED RULES AND PROCEDURES. THE ARBITRATION PROCEEDINGS WILL TAKE PLACE AT A UNITED STATES JAMS RESOLUTION CENTER, THE LOCATION OF WHICH MAY BE DETERMINED BY THE PARTY THAT IS THE FIRST TO COMMENCE THE ARBITRATION. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
ALLOCATION OF FEES AND COSTS: NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE JAMS ARBITRATION RULES AND PROCEDURES, IN THE EVENT THAT YOU COMMENCE ARBITRATION AGAINST US, WE WILL REIMBURSE YOU FOR ANY JAMS FEES PAID BY YOU IN EXCESS OF TWO HUNDRED AND FIFTY DOLLARS ($250) DURING THE ARBITRATION PROCEDURE.
- Taxes and Guild Payments. You are responsible for calculating and paying all taxes owed on all compensation received by you from us. If we are required, pursuant to any applicable present or future law, rule or regulation of any competent governmental or other administrative body, to make any deduction or withholding in respect of tax or otherwise from any amount or amounts payable to you pursuant to this Agreement, we shall: (i) be entitled to pay the amount or amounts in question after the deduction of the amount of such withholding or deduction; (ii) promptly pay to the relevant authority within the period permitted by law the amount of such withholding or deduction; and (iii) provide you with written evidence (including certification where appropriate) that we have made the payment to the relevant authority. If we do not make such withholding or deduction, you shall pay any and all taxes and other charges payable on account of such sums and you indemnify and agree to keep us fully indemnified from and against any liabilities or expense in connection with such withholding or deduction. 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. If you are a US resident or a US citizen, you must complete and submit to us an IRS Form W 9 and any other applicable tax documentation. 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.
- 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.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such deletion(s) as may be necessary to make it valid. The parties agree, in the circumstances referred to in this Section 15, to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
- Data Protection. You consent to us and our duly authorized agents and employees holding and processing both electronically and manually the data (including personal sensitive data and information contained in email, email attachments and other forms of electronic communication) that we collect, store or process that relates to you, for the purposes of the administration and management of our contractors and business and for compliance with applicable procedures, laws and regulations.
To ensure regulatory compliance and for the protection of our workers, contractors, clients/customers and business, we reserve the right to monitor, intercept, review and access any communication facilities provided by us that you may use during the Assignment. We will use this right of access reasonably but it is important that you are aware that communications and activities on the equipment of ours cannot be presumed to be private.