This Writer/Coach Services Agreement is part of the Writer/Coach Contract (defined below) between the Writer/Coach, Client, and DNC Marketing. (“DNC Marketing”), effective and enforceable by Client upon Writer/Coach’s acceptance of a Project on the Site. This Services Agreement incorporates all terms, conditions, rules, policies, and guidelines on the Site, including the DNC Marketing Terms of Service. Capitalized terms not defined in this Services Agreement are defined in the DNC Marketing Terms of Service.
This Services Agreement is effective as of January 1, 2014.
Upon an extension of an offer to contract for a Project and Writer/Coach’s acceptance of a Project, Writer/Coach agrees to deliver the Writer/Coach Services in accordance with the following agreements (collectively, the “Writer/Coach Contract”): (1) the Terms of Service; (2) the Project Terms, as awarded and accepted on the Site; and (3) this Writer/Coach Services Agreement.
Responsibilities and Performance
DNC Marketing shall make a final acceptance for satisfactory Writer/Coach Services in accordance with the Writer/Coach Contract in a timely and professional manner. Writer/Coach is responsible for the performance and quality of the Writer/Coach Services in accordance with the Writer/Coach Contract in a timely and professional manner, consistent with industry practice. The manner and means that Writer/Coach chooses to perform the Project are within Writer/Coach’s sole discretion and control. Writer/Coach shall have sole control over where, when and how the Writer/Coach Services are performed. In performing the Project, Writer/Coach agrees to provide its own equipment, tools, and other materials at its own expense. DNC Marketing and Writer/Coach each covenant and agree to act with good faith and fair dealing in performance of the Writer/Coach Contract.
Duration of Services & Edits
The performance of the Writer/Coach Services under the Writer/Coach Contract commences and terminates on the dates specified in the Project Terms, unless both Writer/Coach and DNC Marketing otherwise agree and DNC Marketing edits the Project deadline on the Site.
A Writer/Coach assigned to a particular Project shall be entitled to perform edits to a Submission, unless, in DNC Marketing’s sole discretion, the submission cannot be used or if the Writer/Coach has had repeated failed edit attempts in the past. In the event that a piece is eligible for edits, the rejected Submission shall be returned to the Writer/Coach with comments, edits or any remarks in order to allow a Writer/Coach to make another Submission. If the Writer/Coach’s following Submission is rejected, DNC Marketing is not obligated to review any additional Submissions from the Writer/Coach in connection with that Project.
Independent Contractor Relationship
Writer/Coach is: (a) not the agent of DNC Marketing; (b) not authorized to make any representation, contract, or commitment on behalf of DNC Marketing, including contacting DNC Marketing Clients; (c) not entitled to any of the benefits that DNC Marketing makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and waives the right to receive any such benefits); and (d) solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Writer/Coach’s performance of services and receipt of fees under the Writer/Coach Contract.
Writer/Coach has the right to be employed by, contract with or otherwise perform similar services for other individuals or entities (specifically including direct competitors of DNC Marketing) during the term of this Agreement. In doing so, Writer/Coach shall not make use of, or disclose, directly or indirectly, any confidential or proprietary information of DNC Marketing or its Clients. Writer/Coach shall have the right at all times to decline to provide services. Writer/Coach shall furnish and maintain at its expense all certifications, licenses, continuing education, equipment and materials used to provide the Services, including, but not limited to a telephone, computer equipment, and high-speed internet access. Writer/Coach is solely and exclusively liable for complying with all applicable state, federal and international laws, including laws governing self-employed individuals, and other contributions based on fees paid to Writer/Coach under the Writer/Coach Contract. DNC Marketing will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Writer/Coach’s behalf. Writer/Coach hereby agrees to indemnify and defend DNC Marketing against any and all such taxes or contributions, including penalties and interest. Upon execution of this Agreement, Writers/Coaches that are the United States tax residents shall provide a completed W-9 to DNC Marketing and shall provide same for any year during which he or she is covered by any extension or renewal of this Agreement.
Intellectual Property Rights
As used in this Services Agreement, the following capitalized terms have the following meanings:
“Intellectual Property Rights” has the meaning given in the Terms of Service Agreement.
“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.
“Submission” means any and all Submission developed by Writer/Coach as part of the Writer/Coach Services as required to complete the Project and delivered to DNC Marketing.
Ownership of Project and Intellectual Property: Writer/Coach agrees that each Submission is a work made for hire. Upon Writer/Coach’s Submission of Project, any Intellectual Property Rights in the Submission will be the sole and exclusive property of DNC Marketing, and DNC Marketing will be deemed to be the author thereof. If Writer/Coach has any rights to such Intellectual Property Rights that are not owned by DNC Marketing upon Writer/Coach’s Submission, Writer/Coach hereby automatically irrevocably assigns to DNC Marketing all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, Writer/Coach retains no rights to use such Intellectual Property Rights and agrees not to challenge the validity of DNC Marketing’s ownership in such Intellectual Property Rights. Writer/Coach hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Submission.
License to or Waiver of Other Rights: If Writer/Coach has any right to such Intellectual Property Rights in the Submission that cannot be assigned by Writer/Coach, Writer/Coach hereby unconditionally and irrevocably grants to DNC Marketing during the term of such rights, an exclusive, even as to Writer/Coach, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights.
Assistance: Writer/Coach agrees to assist DNC Marketing in every way, both during and after the term of the Writer/Coach Contract, to obtain and enforce the United States and foreign Intellectual Property Rights relating to Submission in all countries. In the event DNC Marketing is unable for any reason, after reasonable effort, to secure Writer/Coach’s signature on any document needed in connection with the actions specified above in this Section “Intellectual Property Rights,” Writer/Coach hereby designates and appoints DNC Marketing and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Writer/Coach.
Specific Billing & Payment Policies for Writer/Coachs
(1) How to Bill for Services Using the Payment Service
When an Assigned Writer/Coach makes a final Submission, such request is: (1) Writer/Coach’s representation that it has completed the applicable Writer/Coach Services fully and satisfactorily; and (2) Writer/Coach’s irrevocable instruction to DNC Marketing to process a payment request in accordance with the Project terms.
(2) Partial Payment
Where a Writer/Coach, acting in good faith and with best efforts, makes a Submission on a Project and the Client rejects such Submission, DNC Marketing agrees to compensate Writer/Coach for those services by paying Writer/Coach the agreed upon hourly rate for that Project. All such partial payments are determined in DNC Marketing’s sole discretion and all such determinations are final and binding on Writer/Coachs.
DNC Marketing shall not be obligated to reimburse Writer/Coach for any expenses incurred while engaged in the performance of Services under this Agreement. Writer/Coach shall be solely responsible for all such expenses, including, but not limited to, the cost of equipment, materials, training, licenses, and insurance.
(4) Non Payment
DNC Marketing shall not be obligated to pay Writer/Coach for a Submission or Project where, in DNC Marketing’s sole discretion, such Submission or Project is rejected and/or is determined to be plagiarized or contains poor content.
Writer/Coach agrees that during the term of the Writer/Coach Contract and thereafter, except as expressly authorized in writing by DNC Marketing, Writer/Coach (a) will not use or permit the use of Confidential Information (as defined below) in any manner or for any purpose not expressly set forth in the Writer/Coach Contract; (b) will not disclose or publish any Confidential Information to any third party without first obtaining DNC Marketing’s express written consent on a case-by-case basis; (c) will limit access to Confidential Information to Writer/Coach personnel who need to know such information in connection with their work for DNC Marketing; and (d) will not remove any tangible embodiment of any Confidential Information from DNC Marketing’s premises without DNC Marketing’s prior written consent.
“Confidential Information” means all information related to DNC Marketing and/or a Client’s business and its actual or anticipated research and development or related to a Submission delivered or agreed to be delivered from Writer/Coach to DNC Marketing, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (iii) information designated by DNC Marketing, either in writing or orally, as Confidential Information. Notwithstanding the foregoing, it is understood that Writer/Coach is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of the Writer/Coach Contract, and Writer/Coach’s own skill, knowledge, know-how, and experience. Confidential Information shall not include information that was known to Writer/Coach prior to DNC Marketing’s disclosure hereunder or that becomes publicly available through no fault of Writer/Coach.
Writer/Coach Representations and Warranties
Writer/Coach hereby represents and warrants that (a) the Submission will be an original work of Writer/Coach and Writer/Coach will have executed assignment agreement(s) consistent with this Agreement prior to being allowed to participate in the development of the Submission; (b) the Submission will fully conform to the requirements and terms set forth on the Site and in the Writer/Coach Contract; (c) neither the Submission nor any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party; (d) neither the Project nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (e) Writer/Coach will not grant, directly or indirectly, any rights or interest whatsoever in the Submission to third parties; (f) Writer/Coach has full right and power to enter into and perform the Writer/Coach Contract without the consent of any third party; (g) Writer/Coach will comply with all laws and regulations applicable to Writer/Coach’s obligations under the Writer/Coach Contract; (h) Writer/Coach is solely responsible for the acquisition and payment of any and all third-party clearances, permissions, fees, and licenses that are necessary in connection with Writer/Coach Services including with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials; (i) Writer/Coach shall perform the services in a professional manner and all Submissions or Projects shall use proper English spelling, proper grammar and punctuation and shall contain factually correct statements. In addition, Writer/Coach will verify all facts in each Submission. Writer/Coach agrees that Writer/Coach will not hold himself, herself or itself out as being an employee of DNC Marketing or its clients to any third party, including, but not limited to, any state unemployment agency. Writer/Coach agrees that he, she or it is an independent contractor with respect to all Services provided pursuant to this Agreement.
Writer/Coach will defend, indemnify, and hold harmless DNC Marketing, its affiliates, licensees (in particular, any Clients that contracted with DNC Marketing for the Project concerning the Submission at issue), directors, employees, agents and advisors against any damage, cost, loss or expense arising from a claim, suit or proceeding brought against DNC Marketing (i) alleging that any Submission that Writer/Coach delivers pursuant to the Writer/Coach Contract or the Project infringes upon any Intellectual Property Rights (provided, however, the infringement claim does not pertain to revisions to the Submission performed by DNC Marketing or others); (ii) alleging that any Submission that Writer/Coach delivers pursuant to the Writer/Coach Contract misappropriates any trade secret, of any third party; [iii] any activity performed by Writer/Coach under this Agreement in performance of the Services, or (iv) arising from Writer/Coach’s breach of the terms of this Agreement.
Termination with Cause. Either party has the right to terminate the Writer/Coach Contract in connection with a Project immediately in the event that the other party has materially breached the Writer/Coach Contract and fails to cure such breach within fifteen (15) days of receipt of notice sent by the non-breaching party, setting forth in reasonable detail the nature of the breach. DNC Marketing may also terminate the Writer/Coach Contract immediately in its sole discretion in the event of an assigned Writer/Coach’s material breach of the Sections titled “Intellectual Property Rights,” “Writer/Coach Representations and Warranties,” and “Confidential Information.”
Return of Property. Upon termination of the Writer/Coach Contract or upon DNC Marketing’s request at any other time, Writer/Coach will deliver to DNC Marketing all of DNC Marketing’s property together with all copies thereof, and any other material containing or disclosing any Confidential Information.
Survival. In addition to the provisions of the Terms of Service that will survive, the following provisions will survive termination of the Writer/Coach Contract: Sections titled “Intellectual Property Rights,” “Confidential Information,” “Writer/Coach Representations and Warranties,” “Indemnification,” “Return of Property,” “Survival,” “Exclusion and Limitations of Liability,” “Arbitration Agreement” and “General Provisions.”
Disclaimer of Warranties
OTHER THAN THE WARRANTIES EXPRESSLY STATED HEREIN OR IN THE TERMS OF SERVICE, DNC MARKETING DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE.
Exclusions and Limitations Liability
IN NO EVENT SHALL DNC MARKETING BE LIABLE TO WRITER/COACH FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THE WRITER/COACH CONTRACT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL DNC MARKETING BE LIABLE TO WRITER/COACH FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED FOR THE PROJECT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, IN AN AMOUNT IN EXCESS OF THE AMOUNT THE DNC MARKETING PAID TO THE WRITER/COACH THROUGH THE SITE DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.
(a) Writer/Coach and DNC Marketing agree and acknowledge that they will utilize final and binding arbitration to resolve all disputes that may arise out of or relate to this Agreement, the Services and Writer/Coach’s relationship with DNC Marketing, including retroactively requiring the use of arbitration for any dispute that may have arisen from the time that Writer/Coach began providing services to DNC Marketing. Both DNC Marketing and Writer/Coach agree that any claim, dispute, and/or controversy that either Writer/Coach may have against DNC Marketing (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) or DNC Marketing may have against Writer/Coach, arising from, related to, or having any relationship or connection whatsoever with Writer/Coach’s contract relationship with DNC Marketing, including the classification of Writer/Coach as an independent contractor shall be submitted to and determined exclusively by binding arbitration. This Arbitration Agreement is governed by the Federal Arbitration Act, and Writer/Coach acknowledges that this Agreement evidences a transaction in commerce. Included within the scope of this Arbitration Agreement are all disputes, whether based on tort, contract, statute, equitable law, or otherwise (excluding workers compensation, state disability insurance and unemployment insurance claims). Claims may be brought before an administrative agency but only to the extent applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Agreement.
(b) In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. However, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement, the preceding sentence shall not be severable from this Agreement in any case in which the dispute to be arbitrated is brought as a class, collective or representative action. Although Writer/Coach will not be retaliated against, disciplined or threatened with discipline as a result of exercising Writer/Coach’s rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collective or representative action in any forum, DNC Marketing may lawfully seek enforcement of this Agreement and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims. Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
(c) Resolution of the dispute shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis other than such controlling law. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. Awards shall include the arbitrator’s written reasoned opinion. Writer/Coach and DNC Marketing understand and agree to this binding arbitration provision, and both Writer/Coach and DNC Marketing give up our right to trial by jury of any claim Writer/Coach and DNC Marketing may have against each other.
(d) The parties shall each bear their respective costs for legal representation at any such arbitration, except to the extent attorney’s fees are explicitly provided by law. The parties shall split any initial administrative fee charged by the Arbitrator.
(e) Except as stated in Paragraph M(c), if any term or provision, or portion of this Arbitration Agreement is declared void or unenforceable it shall be severed and the remainder of this Arbitration Agreement shall be enforceable.
WRITER/COACH’S SIGNATURE, ELECTRONIC OR OTHERWISE, INCLUDING THE ACCEPTANCE OF A PROJECT AND PERFORMANCE OF THE SERVICES, ATTESTS TO THE FACT THAT WRITER/COACH HAS READ, UNDERSTOOD, AND AGREED TO BE LEGALLY BOUND TO ALL OF THE ABOVE TERMS OF THE ARBITRATION AGREEMENT, SPECIFICALLY INCLUDING THE CLASS ACTION WAIVER.
Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii without regard to its conflicts of law principles. Any controversy, claim or dispute arising out of or relating to this Agreement between Writer/Coach and DNC Marketing (including their respective assignees, affiliates, attorneys and/or agents), or their relationship, either during the existence of the relationship or afterwards, shall be resolved solely and exclusively by the courts in such state.
Severability. If any provision of the Writer/Coach Contract is, for any reason, held to be invalid or unenforceable, the other provisions of the Writer/Coach Contract will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
No Assignment. The Writer/Coach Contract, and the party’s rights and obligations herein, may not be assigned or otherwise transferred by either party without the other’s prior written consent, and any attempted violation of the foregoing will be null and void. The terms of the Writer/Coach Contract will be binding upon assignees. Notwithstanding the foregoing, DNC Marketing may, without the consent of Writer/Coach, assign any rights and obligations under the Writer/Coach Contract. Any permitted assignment of the Writer/Coach Contract shall be binding upon and enforceable by and against DNC Marketing’s and Writer/Coach’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the Writer/Coach Contract.
Notices. Each party must deliver all notices or other communications required or permitted under the Writer/Coach Contract to the other party at the contact information identified in these terms or elsewhere on the Site.
Injunctive Relief. Writer/Coach acknowledges that, because its services are personal and unique and because Writer/Coach will have access to Confidential Information of DNC Marketing, any breach of the Writer/Coach Contract by Writer/Coach would cause irreparable injury to DNC Marketing for which monetary damages may not be an adequate remedy and, therefore, will entitle DNC Marketing to injunctive relief (including specific performance). The rights and remedies provided to each party in the Writer/Coach Contract are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
Waiver. Any waiver or failure to enforce any provision of the Writer/Coach Contract on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Execution and Delivery; Binding Effect. The parties will evidence execution and delivery of the Writer/Coach Contract with the intention of becoming legally bound, by accepting the Terms of Service on the Site.
Entire Agreement. The Writer/Coach Contract is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to the Writer/Coach Contract, or any waiver of any rights under the Writer/Coach Contract, will be effective unless accepted by Writer/Coach and DNC Marketing.
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