This Contributor’s Agreement (the “Agreement”) is entered into between the Demand Media companies (“Demand Media”, “we”, “us” or “our”, and as further defined below in Section 18) 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.
In consideration of the mutual promises contained herein, you and we hereby agree as follows:
- Nature of Services; Assignments. Your application and all materials in support of your application to enroll in the Demand Media Studios program must be complete, accurate, and truthful. Your application must be reviewed and approved by Demand Media before you are eligible for any Assignments. We may, but are under no obligation to, make available to you or commission you for individual Assignments from time to time following your acceptance into the Demand Media Studios program. If available and applicable, Assignments for different project roles within Demand Media Studios will be posted on the Website from time to time. Each Assignment is governed by (i) the terms of this Agreement and (ii) any other terms and conditions set forth on the Website or as directed by a Demand Media Studios Editor as it pertains to your particular Assignment (“Additional Terms”). The Additional Terms, which may include deadline, compensation, delivery, promotional commitments, and scope of duty requirements, may vary from Assignment to Assignment depending on the project role (e.g., “Filmmaker” versus “Writer”). The Additional Terms will be readily accessible on the Website or otherwise readily conveyed to you, and we will notify you in advance of any material changes to the Additional Terms where applicable. In the event of any conflict between the terms of this Agreement and any Additional Terms with respect to any particular Assignment, the Additional Terms will take precedence with respect to that specific Assignment.
- Delivery; Contributions. For any Assignment made available by Demand Media Studios and accepted by you, you will either independently create or assist in the creation of an original work of authorship or other work product. Your original work of authorship or contribution to other work product is referred to as your “Contribution”. All Contributions must meet the quality standards set by Demand Media and any applicable style guide, as determined by Demand Media. You will perform the Assignment in a professional manner in accordance with the level of care customarily observed by skilled professionals rendering similar services. You must deliver each Contribution to us in accordance with the procedures specified by us. We will notify you if we have accepted or rejected each Contribution. If rejected, we may, in our sole discretion, provide you with an opportunity to modify the Contribution and resubmit it for approval. If we believe you have made a good faith effort to satisfy an Assignment, but we choose not to accept the Contribution for any reason, we may elect to terminate the Assignment and pay you a “kill fee” (depending on the Assignment, up to 15% of the payment amount specified in the Assignment for the completed Contribution). Demand Media will not pay you more than three kill fees during the term of this Agreement or your participation in the Demand Media Studios program. Except for the “kill fee,” we have no obligation to pay you unless and until we notify you in writing that we have approved a Contribution. If we reject a Contribution, all of your original rights (if any) in the Contribution created by you will, as between Demand Media and you, be held by you.
- Payment. Following acceptance of a Contribution by us, we will pay you the amount set out in the Additional Terms directly through your PayPal or similar online, approved account pursuant to the information you provide to us (generally within 10 days after acceptance, unless otherwise set forth in any Additional Terms), or, at our discretion, by mailing you a check (generally within 15 days after acceptance). We reserve the right to require you to submit an invoice to us before payment will be issued. If you reside in a territory where VAT applies, our payment to you may include VAT if appropriate and/or your payment may be subject to a VAT invoice. We shall be entitled to deduct from the fees (and any other sums) due to you, any sums that you may owe to us at any time.
- Your Grant of Rights. Each of your Contributions will be original and solely created by you as a “work-made-for-hire” specially ordered or commissioned by us, with Demand Media being deemed the sole author of the Contribution and the owner of all rights whether now known or hereafter devised (including all copyrights and all extensions and renewals of copyrights) in and to the Contribution, with the right to make all uses of the Contribution throughout the world and all changes in each Contribution. Without further obligation to you and without limitation, we may use, reproduce, publish, sell, perform, distribute, display, exhibit, edit, change, add to, take from, translate, reformat, make derivative works from, or reprocess the Contribution in any manner.
If for any reason a Contribution is not deemed to be a work-made-for-hire under applicable law, you hereby irrevocably assign to us all right, title and interest whether now known or hereafter devised (including all copyrights and all extensions and renewals of copyrights) in and to each Contribution throughout the world, including any and all of your rights to commercially exploit each Contribution by any media and means now known or hereafter devised (including without limitation to use, reproduce, publish, sell, perform, distribute, display, exhibit, edit, change, add to, take from, translate, reformat, make derivative works from, or reprocess the Contribution in any manner) and to authorize and control the exploitation of the same and to sue in respect of past infringement of any such right, title and interest so assigned.
To the extent permissible under applicable law, you waive all “moral rights of authors” that may exist or any similar rights. We may, but are not obligated to, provide attribution to you in connection with any Contribution or to display, use or otherwise exploit any Contribution.
You hereby grant us a royalty-free, perpetual, nonexclusive, worldwide, transferable license to use and display any biographical information or photographs that you provide to us in connection with this Agreement in any and all media now known or hereinafter devised. We shall be entitled to assign or sublicense all or a portion of all rights and licenses granted herein without additional payment to you. Upon request by us, and at your own cost, you will promptly provide us with such documents and agreements as we may require to further evidence, give lawful effect to and confirm your representations, warranties, and covenants under this Agreement, including material and location releases and assignments.
- Talent & Expert Program. This Section 5 only applies to Assignments made available under our Talent & Experts Program and to Contributors who deliver approved Contributions under the Talent & Experts Program, in addition to all other terms and provisions of this Agreement.
- Additional Grant of Rights in Your Likeness. Depending on the nature of your Assignment, your Contribution may include or be accompanied by your name, image, biography/resume, words, recorded actions, outtakes, voice/sound print, photograph, picture, video, movie, or other likeness (collectively, your “Likeness”). You agree that Demand Media is the exclusive owner of all copyrights and other rights in and to all Contributions, tangible works, and any results and proceeds arising from the use of any or all of your Likeness in connection with your Contribution. You further agree to give us the royalty-free right to use, incorporate, exhibit, reproduce, distribute, promote, publicize, and otherwise exploit your Likeness in any and all media, now known and hereafter devised, throughout the world and in perpetuity in connection with your Contribution. For the avoidance of doubt, our rights to your Likeness are limited to that which you submit to us as part of or in connection with your Contribution (for example, we have rights to video of you that you submit but not video of you that may exist elsewhere). We shall be entitled to assign or sublicense all or a portion of all rights and licenses granted herein without additional payment to you.
- Limited License. Notwithstanding your grant of rights in your Contribution(s) to Demand Media under Section 4 and Section 5 of this Agreement, Demand Media grants you the limited license to include your Contribution(s) or portions thereof in your personal demo reel; provided, however, (i) that proper attribution is provided according to the guidelines set forth by Demand Media from time to time and (ii) that you do not license, sell, or syndicate such content to any third parties.
- Equitable Remedies. The rights and services which are the subject matter of this Agreement with respect to the Talent and Expert Program are of a special, unique, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and which would cause Demand Media great irreparable injury and damage. Accordingly, and notwithstanding anything to the contrary in this Agreement (including Section 11), Demand Media shall be entitled to injunctive relief, specific performance and other equitable relief to preserve its rights and interest in and to such rights and services as are set forth herein. This provision shall not, however, be construed as a waiver of any rights Demand Media may have for damages or otherwise arising from any breach of this Agreement. You agree that your sole remedy in the event of any default or breach of the Agreement by Demand Media (including, but not limited to, the failure to pay any sums which may be due to you, and/or to comply with any credit provisions hereunder) shall be an action at law against Demand Media to recover monetary damages actually suffered, if any (but no special, consequential or punitive damages). Specifically, you agree that you shall have no right to enjoin the distribution or exhibition of any Contribution or Assignment, any other motion picture or other work based upon a Contribution or Assignment, or to terminate or rescind any of the rights, releases or privileges granted hereunder to Demand Media, or to obtain any other form of equitable or injunctive relief, any right to which you irrevocably waive. At all times, Demand Media shall have all rights and remedies which it has at law or in equity pursuant hereto or otherwise, all of which rights and remedies shall be construed as cumulative.
- 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.
- 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. If this Agreement is terminated by either party while an Assignment is pending, such termination will not be effective until the Assignment is completed. Section 4 (“Your Grant of Rights”), Section 5 (“Talent & Expert Program”), Section 8 (“Confidentiality”), Section 9 (“Representations and Warranties”), Section 10 (“Limitation of Liability”), Section 11 (“Governing Law; Arbitration”), Section 14 (“Severability”) and any other term that should reasonably be construed as surviving the termination of this Agreement, will survive termination. But, after termination of this Agreement and as soon as practicable after your written request therefor, we will cease displaying your biographical information other than your name and photograph on any web site that we own and operate except with respect to Contributions submitted under the Talent & Expert Program.
- 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. You agree that breach of this provision constitutes a material breach of this Agreement, and Demand Media will be entitled to any damages caused by such breach, including, but not limited to, the recovery of reasonable attorney’s fees. In performing your services under this Agreement, you will not use improperly or disclose to Demand Media 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 least 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 right, title or interest in and to the Contribution to any third party, nor do anything else to impair in any way our right, title and interest 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; and
- 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.
- 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.
- GOVERNING LAW; ARBITRATION.
- Governing Law. This Agreement will be interpreted according to the laws of the state of California, United States of America, excluding those or choice of law principles or other laws that would give effect to the laws of a different jurisdiction.
- Forum for Legal Disputes. You agree that any claim or dispute you may have against us must be resolved exclusively by a state or federal court located in Los Angeles County, California, except as otherwise agreed by the parties or as described in the Arbitration option discussed below. You agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
- Arbitration Option. FOR ANY CLAIM (EXCLUDING CLAIMS FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF OR ANY CLAIM WITH RESPECT TO CONTRIBUTIONS OR ASSIGNMENTS MADE PURSUANT TO THE TALENT & EXPERTS PROGRAM) WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS LESS THAN US$15,000, YOU MAY ELECT TO RESOLVE THE DISPUTE IN A COST EFFECTIVE MANNER THROUGH BINDING NON-APPEARANCE-BASED ARBITRATION. IN THE EVENT A PARTY ELECTS ARBITRATION, THAT PARTY SHALL INITIATE SUCH ARBITRATION THROUGH AN ESTABLISHED ALTERNATIVE DISPUTE RESOLUTION ("ADR") PROVIDER MUTUALLY AGREED UPON BY THE PARTIES. THE ADR PROVIDER AND THE PARTIES MUST COMPLY WITH THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED BY TELEPHONE, ONLINE AND/OR BE SOLELY BASED ON WRITTEN SUBMISSIONS, THE SPECIFIC MANNER SHALL BE CHOSEN BY THE PARTY INITIATING THE ARBITRATION; (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES; AND (C) ANY JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
- Contacting Us. Demand Media has provided the above options to provide you with a neutral and cost effective means of resolving disputes. Before resorting to binding legal adjudication, we encourage you to first contact us directly to seek resolution of any claims or disputes by going to the “Help Desk and Contact Us” page on our site.
- 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. All other Contributors will be required to complete a form W-8BEN 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 14, 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.
- No Assignment. You must personally perform the Assignment and you are not entitled to assign the benefit or burden of this Agreement or ask any third party to perform a part of or assist in the performance of the Assignment under any circumstances whatsoever without the express written consent of Demand Media.
- 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.
- Definitions. The “Demand Media companies” means:
- Demand Media, Inc., a Delaware corporation, which owns and acquires all United States domestic ownership, intellectual property and distribution rights in the Contributions submitted under this Agreement; and
- Demand Media International Holdings Limited, which owns and acquires all international (other than United States) ownership, intellectual property and distribution rights in the Contributions submitted under this Agreement.