SEED PUBLISHING PROGRAM AGREEMENT
This Seed Publishing Program Agreement ("Agreement") is hereby made between AOL Inc., ("AOL") and the individual submitting original articles, blogs, photo, video and/or other original content ("Content") to AOL hereunder ("You") (AOL and You, each a "Party" and together, the "Parties"). AOL hereby grants You the privilege to participate in AOL'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 (INCLUDING EXHIBIT A), AOL'S TERMS OF SERVICE ("TOS"), PRIVACY POLICY AND AOL'S PUBLISHING TERMS SET FORTH IN SECTION 2 OF EXHIBIT A HERETO ("PUBLISHING TERMS"). YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING THE TERMS OF THIS AGREEMENT ELECTRONICALLY, WHICH HAS THE SAME FORCE AND EFFECT AS AN AGREEMENT IN SIGNED IN WRITING.
Program. The term of this Agreement shall begin upon Your accepting the terms of this Agreement and shall continue in force and effect until terminated as provided herein. AOL may terminate this Agreement by providing notice to You through a dashboard provided for Your participation in the Program ("Your Dashboard"). AOL may eliminate or change the Program at any time. If AOL eliminates the Program, this Agreement shall terminate. If AOL changes the Program, such changes shall be incorporated herein; provided that, no such changes shall be effective prior to the date a description of the change is posted on an AOL website for the Program currently located at www.seed.com ("AOL Program Site") and such change is implemented. You are responsible for checking all terms and conditions of the Program, including without limitation the TOS and Privacy Policy, by periodically checking the AOL Program Site. Your ongoing participation in the Program and/or submission of any Content after any changes to the Program, including this Agreement, signifies Your acceptance of all the changes. If You do not agree to the changes or wish to terminate Your continued participation in the Program, You may do so by not submitting any additional Content to AOL. Termination of this Agreement shall not terminate any license rights to Your Content AOL acquired prior to termination.
Submission of Content. You may submit Your Content to AOL for display on the AOL website created specifically to publish Content under the Program currently located at www.owl.com ("AOL Publishing Site") and/or on another AOL website through Your Dashboard in one of two ways: (a) in response to a topic suggested by AOL and/or (b) on a topic suggested by You and not in response to an AOL suggested topic. By submitting Your Content, You give AOL the opportunity to review Your Content during the Holding Period (defined below) and, if it complies with the Publishing Terms and AOL accepts Your Content, to determine which type of available license described below AOL elects to acquire. YOU UNDERSTAND THAT ONCE YOU SUBMIT YOUR CONTENT AND AOL ACQUIRES A LICENSE TO IT, YOU WILL NOT HAVE A RIGHT TO REMOVE YOUR CONTENT FROM THE PROGRAM.
Holding Period. For any Content You submit, AOL shall have an option to acquire one of the available licenses set forth below. The duration of this option period shall be five business days (the "Holding Period") after the due date during which time AOL will either reject Your Content in its sole discretion, including because it does not comply with the Publishing Terms, or accept Your Content and elect which available license AOL wishes to acquire. 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. AOL will notify You through Your Dashboard of the status of all of Your submitted Content.
Types of Licenses. If Your Content complies with the Publishing Terms, AOL will acquire one of three licenses to Your Content: (1) an Exclusive License, (2) a Limited Exclusive License, or (3) a Non-Exclusive License. The terms of such licenses are set forth in Exhibit A. Basically, (a) the Exclusive License grants AOL broad rights to Your Content, including being able to publish your Content on AOL and/or third party sites on a perpetual basis and You waive Your right to assert certain claims You may have in it, (b) the Limited Exclusive License gives AOL the same rights as an Exclusive License except that AOL may not display Your Content on third party sites, and (c) a Non-Exclusive License gives AOL some of the same rights to use Your Content as the Exclusive License except that You, and others You may grant licenses to, may also publish Your Content elsewhere. The other difference in the licenses is that AOL will pay You different amounts depending on which type of License AOL acquires. Generally, as described more specifically in the AOL's payment terms for the Program ("Program Payment Terms") and below, AOL will pay an upfront payment for an Exclusive License, a Calculated Earnings (as defined in the Payment Terms) share payment for a Limited Exclusive License and a lower percentage Calculated Earnings share payment for a Non-Exclusive License. You understand that (a) AOL may, at any time, select one or more pieces of Your submitted Content or none at all for an Exclusive License, and (b) AOL may acquire an Exclusive License to Your Content at any time after making its initial choice to acquire one of the other licenses by paying You the applicable amount for an Exclusive License and, at such time, Your right to any further Calculated Earnings share payments would cease.
Previously Published Content. If You have previously published Your Content (e.g., published in a newspaper or other website), the only license AOL may acquire is a Non-Exclusive License. In exchange for the Non-Exclusive License, AOL shall publish Your Content on the AOL Publishing Site and/or another AOL website, provide You with attribution for Your Content and will pay You the Calculated Earnings share payment applicable to a Non-Exclusive License as set forth in the Program Payment Terms.
Unpublished Content on an AOL Suggested Topic. Each AOL suggested topic will state the price at which AOL is willing to acquire an Exclusive License to such Content ("AOL Offer Price"). If You submit Your Content to AOL in response to an AOL suggested topic and Your Content does not violate the Publishing Terms, has never been published before and AOL accepts Your Content, AOL will elect to either acquire (a) an Exclusive License to Your Content in exchange for the AOL Offer Price, or (b) a Limited Exclusive License to Your Content in exchange for publishing Your Content on the AOL Publishing Site and/or another AOL website, providing You attribution for Your Content and paying You the Calculated Earnings share payment applicable to a Limited Exclusive License as set forth in the Program Payment Terms.
Unpublished Content on Your Own Topic. If You submit Your Content NOT in response to an AOL 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 AOL an Exclusive License to Your Content ("Your Offer Price"), and (b) if AOL does not choose to acquire an Exclusive License to Your Content, whether You wish to provide AOL with a Limited Exclusive License or a Non-Exclusive License to Your Content. AOL 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, or (3) accept Your Content and acquire a Limited Exclusive License or Non-Exclusive License, as You have specified, in exchange for publishing Your Content on the AOL Publishing Site and/or another AOL website, providing You attribution for Your Content and paying You the Calculated Earnings share payment applicable to a Limited Exclusive License or Non-Exclusive License, respectively. The payment terms applicable to a Limited Exclusive License and a Non-Exclusive License are set forth in the Program Payment Terms.
Payment. Terms of payment under this Program shall be posted at the Program Payment Terms [HOT LINK] and are made a part of this Agreement. AOL may change payment terms or requirements at any time. You understand and agree that AOL incurs administrative costs in offering the Program and making payments to You; therefore, AOL is not obligated to send You a payment until the amount owed to You is greater than the threshold amount set forth in the Program Payment Terms and You request payment through Your Dashboard. Each time You submit Content, You are electronically agreeing to any changes then in effect regarding the Program, including without limitation, changes to the Program Payment Terms. All payments owed hereunder shall be made to You via Your Pay Pal account or other elected method as specified in the Program Payment Terms. You are responsible for ensuring that the Pay Pal or other payment information You provide to AOL is current at all times. AOL will not be responsible for paying any Pay Pal or other fees, other charges or interest, including without limitation fees or charges resulting from Your failure to comply with these terms, such as those incurred for not being able to pay You, or restoring payments to You that were paid into the wrong account if Your Pay Pal or other payment information is not up to date. If Your payment account information is not correct and AOL is unable to complete payment to You or You fail to comply with the Program Payment Terms, Your funds may be subject to turn over to a State pursuant to its unclaimed property or escheat laws. In addition, if more than one year passes after Your funds were due You under this Agreement, and You have failed to take the necessary steps to enable AOL to pay You, then You agree AOL shall have the right to impose a charge against Your funds to cover its expenses incurred to comply with applicable law. AOL reserves the right to offset the amounts paid to You for any Content submitted by You that AOL subsequently learns is not Your Content against any amounts owed to You.
Removal of Content. AOL shall have the right to remove Your submitted Content from the Program at any time for any reason and shall notify You through Your Dashboard if AOL decides to remove Your Content. In the event AOL decides to remove Your Content from the Program, any Limited Exclusive License or Non-Exclusive License AOL has to Your Content shall terminate.
Terms and Conditions. As specified in Exhibit A which is made a part of this Agreement.
EXHIBIT A
TERMS AND CONDITIONS
1. Participation in Program.
Tax Forms. In order to enroll in the Program, You must be a U.S. person
(as the term "U.S person" is defined under U.S. tax laws)
and You must provide us with Your valid U.S. tax identification number
and a fully-completed Form W-9. Separate terms and conditions shall
apply if You are a foreign person (as defined in the U.S. tax laws),
which will be provided to You if the Program becomes available for participation
outside the U.S. You understand that once amounts owed to You reach
$600 (or another amount required by law) on an annual basis, AOL will
file a 1099 form for You with the IRS.
Inaccurate Payment Information. If Your payment account information
is not correct and AOL is unable to complete payment to You, Your funds
may be subject to applicable state unclaimed property or escheat laws.
Non-Payment. You agree to notify AOL of any disputed or missing
payment within thirty (30) days of the date that payment is or should
have been received. You can review the status of Your account via Your
Dashboard.
Termination of Program. In the event AOL terminates the Program,
AOL 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 AOL 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 AOL the requisite information for payment
via a current PayPal account or other AOL approved method of payment,
(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 AOL 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, utilizing proper
grammar, spelling and punctuation.
B. Is 100% Your own, original work, and does not infringe on or violate:
(i) any intellectual property rights of any party, including but not
limited to, patents, trademarks, design rights, copyrights, database
rights, trade secrets, moral rights, and other proprietary rights and
all rights of an equivalent nature anywhere in the world, (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 AOL 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, including, without limitation: lotteries, ammunition, firearms,
fireworks and other explosive materials, tobacco, alcohol, adult products
and services, such as phone sex and escort services, illegal products
and services, and other products and services AOL 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, including without limitation,
Content that would be understood to be providing medical treatment,
legal advice or investment advice .
L. Does not contain Content to solicit, recommend, endorse, or offer
to buy or sell any securities or other financial instruments or recommend
that any particular security, portfolio of securities, transaction or
investment strategy is suitable for any specific person.
M. You shall comply with the Code of Ethics posted by the Society of
Professional Journalists located at http://www.spj.org/ethicscode.
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 AOL 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.
AOL Publishing Platform. You may be given access to AOL content
and/or publishing or other platforms and applications to use to submit
and/or create Your Content submitted to AOL ("collectively,
"AOL Publishing Platform"). You will keep strictly confidential
any usernames and passwords for access to the AOL Publishing Platform
(or any portion thereof), shall not allow any other person to access
or use the AOL Publishing Platform utilizing Your username or password,
and You will access or use the AOL Publishing Platform solely for the
purpose of submitting and/or managing Your Content for the Program to
AOL 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 AOL. AOL shall have the right at any time and for
any reason to suspend or terminate Your access to the AOL Publishing
Platform and AOL shall have no liability for any losses, including without
limitation, of data, content, revenue or Calculated Earnings related
to such action. If a license acquired by AOL to Your Content terminates
or if You publish Your non-exclusive Content elsewhere, You shall remove
any content or other materials contained in Your Content that was provided
by AOL or that was created with the aid of the AOL 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 AOL. 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 AOL’s employee benefit plans or programs,
including, but not limited to, bonus, vacation, health, pension, incentive
compensation or other employee programs or policies ("Benefits
Plans"). If for any reason You are deemed to be a statutory
or common-law employee of AOL 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. AOL 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 AOL to the appropriate taxing authority. AOL 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 AOL pursuant to
the "Indemnity" section of this Agreement. AOL 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 AOL 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 AOL an exclusive, worldwide,
irrevocable, perpetual, 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
AOL 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,
AOL 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 AOL's or any sublicensee’s use
thereof, including without limitation any moral rights or other literary
property or authors' rights.
Limited Exclusive License. You hereby grant to AOL an exclusive,
perpetual worldwide, irrevocable, fully paid-up, royalty free (other
than any Calculated Earnings share payments due under the Program Payment
Terms), 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 attribution to you, for any purpose and
in all forms and all media whether now known or to become known in the
future, as AOL may determine in its sole discretion, including, without
limitation, on the Internet and via broadcast television but solely
in connection with publication on the AOL Publishing Site, any other
AOL website and/or associated platforms or products which include content
on such AOL websites (or a portion thereof), including such site’s
social networking pages and similar distribution methods ("Limited
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 Limited Exclusive License,
AOL shall have and is hereby granted (i) all rights to any revenue and
income derived from Your Content (other than the Calculated Earnings
share payment due to You under the Program Payment Terms), (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 Limited 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 AOL's
or any sublicensee’s use thereof, including without limitation any
moral rights or other literary property or authors' rights. This Limited
Exclusive License shall terminate only in the event AOL decides to remove
Your Content from publication on the AOL Publishing Site or another
AOL website.
Non-Exclusive License. You hereby grant to AOL a non-exclusive,
worldwide, irrevocable, fully paid-up, royalty free (other than the
Calculated Earnings share payment due to You under the Program Payment
Terms), 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 attribution to You, for any purpose and
in all forms and all media whether now known or to become known in the
future, as AOL may determine in its sole discretion, including, without
limitation, on the Internet and via broadcast television ("Non-Exclusive
License"). You hereby agree and acknowledge that under this
Non-Exclusive License, AOL shall have and is hereby any and all rights
to assert claims of infringement (present, or future) against any third
party arising out of or in relation to Your Content displayed pursuant
to the Non-Exclusive License. This Non-Exclusive License shall terminate
only in the event AOL decides to remove Your Content from publication
on the AOL Publishing Site or another AOL website.
Name and Likeness. You hereby grant AOL a perpetual, non-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 AOL 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 AOL deems appropriate in its sole
discretion. In addition to the indemnities set forth in the Agreement,
You hereby release AOL and hold AOL harmless from and against (i) any
liability based on any personal property, residual, re-use or other
payment by virtue of AOL’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.
Mobile Access. You agree and acknowledge that the Program is
offered primarily via the AOL Program Site. AOL may, in its discretion,
offer access to all or part of the Program, including without limitation
the AOL Program Site, via offline or mobile access points ("Alternative
Access"). Such Alternative Access interfaces are offered as
a convenience to You, but may not offer all functionality available
at the AOL Program Site or may rely upon enhanced functionality available
only for such Alternative Access (e.g., mobile geo-location services.)
Your use of such Alternative Access is solely at Your own risk and You
are responsible for reviewing and understanding the limitations, licenses
or enhanced features offered by such Alternative Access.
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 AOL’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 AOL 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 AOL has acquired an
Exclusive or Limited Exclusive License without the prior written consent
of AOL, and (c) You shall comply with all applicable local, state and
federal laws in creating Your Content and submitting it to AOL 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 AOL 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 AOL, 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 AOL 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 AOL
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 AOL 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 AOL 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 AOL of any information
related to Your submitted Content which could reasonably lead to a claim,
demand or liability of or against AOL 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 AOL or its affiliates, directors,
officers, employees or agents, including without limitation, this Program
or AOL’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 AOL in each case, use in advertising, publicity, or otherwise
the name of AOL, or images of AOL 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 AOL 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 AOL ELECTRONICALLY.
AOL MAY PROVIDE NOTICES TO YOU ELECTRONICALLY (1) VIA E-MAIL, IF YOU
HAVE PROVIDED AOL WITH A VALID EMAIL ADDRESS, (2) VIA POSTING THE NOTICE
ON A WEBSITE DESIGNATED BY AOL FOR THIS PURPOSE, AND/OR (3) VIA YOUR
DASHBOARD. The delivery of any Notice is effective when sent or posted
by us, 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 Commonwealth of Virginia except for its conflicts
of laws principles, and each Party irrevocably consents to the exclusive
jurisdiction of the courts situated in Virginia 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 AOL. The Confidentiality and Indemnity
clauses and this Section 11 shall survive the expiration or termination
of this Agreement