“EXAMINERS” INDEPENDENT CONTRACTOR AGREEMENT AND LICENSE
Important - Read Carefully: This Examiners
Independent Contractor Agreement and License (“Agreement”) is a legal agreement between you as a proposed
“Examiner” performing the Services described herein for Examiner.com, a
In consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1) Services:
a) Scope: You will use your best efforts to perform the following services (“Services”): (i) writing or otherwise providing a blog, general articles, links, and other related content on a topic for a specific city or Examiner.com edition (the “Topic”) that has previously been confirmed by Examiner.com in an e-mail to you, in accordance with guidelines to be provided by Examiner.com; (ii) publishing content to the Web Page using a specific publishing application (the “Product”); (iii) maintaining the content of a web page (the “Web Page”) related to the Topic (including without limitation all text content, links, RSS feeds, photographs and video, all subject to the restrictions of this Agreement) within the template provided by Examiner.com; (iv) facilitating an online dialogue with readers about the Topic and taking reasonable steps to create an active and engaged online community on the Web Page; and (v) taking reasonable steps to drive traffic to the Web Page. You agree to abide by and enforce the Examiner.com Terms of Use with regard to all content on the Web Page, and you understand that you personally are bound by the Terms of Use in performing the Services and your general use of the Examiner.com site. The specific content to be featured on the Web Page will generally be determined by you, in your reasonable discretion, subject to the restrictions set forth herein, and may include content created by you during the Term (whether for Examiner.com or for your own blog or other web page, provided that you own all right, title and interest therein), prior to the Term, or content to which you otherwise have all rights necessary to include the content on the Web Page. You will update the Web Page as often as reasonably needed, and you will regularly write and post new text content created by you to the Web Page. You will report to a local content director designated by Examiner.com (“Local Content Director”) in the performance of the Services. You will alert the Local Content Director regarding any important or interesting content to be featured on the Web Page, and you will provide status reports to the Local Content Director as designated by the Local Content Director.
b) Third Party Advertisements and Content: You will have no control over advertisements placed on the Web Page by Examiner.com, however, you are welcome to suggest potential advertisers to your Local Content Director. You are not authorized to enter into any license agreement for any RSS feeds or other content to be integrated into the Web Page, and all such license agreements (including click-through agreements) must be sent to your Local Content Director, who may enter into such agreements in his or her discretion.
2) Consideration: In consideration of the Services, you will be provided exposure of your name and the Web Page. You understand that you will not initially receive any other compensation for performance of the Services. However, if the Web Page obtains traffic levels and/or other performance metrics determined by Examiner.com from time to time, you may be eligible for a performance-based incentive (“Incentive”), which would be paid according to a formula and metrics to be provided to you by Examiner.com, as modified by Examiner.com from time to time in its sole discretion. Payment of the Incentive will be by PayPal, check or another method as determined by Examiner.com. Examiner.com reserves the right to withhold payment of any Incentive if in its sole discretion it suspects click-fraud or other unethical methods of increasing traffic to the Web Page. You will be provided confidential information on traffic to the Web Page, which will be used for determining eligibility for the Incentive. If you dispute any calculations of traffic or other metrics used to determine eligibility for the Incentive, you may request an audit of the traffic to the Web Page no more frequently than twice per calendar year, at your own expense. If the results of such audit indicate that traffic to the Web Page was under reported by 10% or more, Examiner.com will reimburse you for the reasonable costs of such audit. You understand that if Examiner.com determines in its sole discretion that it wishes to enter into a paid agreement with you, Examiner.com will inform you that it wishes to terminate this Agreement and enter into a paid arrangement upon terms to be mutually agreed upon by you and Examiner.com. Examiner.com makes no representations as to the likelihood that you will ever receive monetary compensation from Examiner.com with regard to the Services or otherwise.
3) Term/Termination: This Agreement is effective when you click on the “I Agree” button and submit this Agreement to Examiner.com, and continues until terminated by either party as described herein (the “Term”). Examiner.com may terminate this Agreement immediately at any time, with or without cause, by providing written notice to you. If you wish to terminate this Agreement, you may do so by providing written notice at least one (1) week in advance of your proposed termination date by sending an e-mail to your Local Content Director stating that you wish to terminate this Agreement, and the proposed effective date of such termination. Sections 4, 5, and 7 through 15 will survive any expiration or termination of this Agreement. Examiner.com will have no liability arising out of the termination of this Agreement. Upon termination of this Agreement, you must discontinue all use of the Product, and destroy all materials and related documentation obtained from Examiner.com specifically related to this Product (please note that this does not include any of your source materials used in creating the Works, which must be retained as stated in Section 4(e) of this Agreement).
4) Requirements and Limitations:
a) You understand and agree that Examiner.com may or may not in its sole discretion, pre-screen the Works (as defined below in Section 7) posted on or available through the Web Page, and that Examiner.com and its designees have the right (but not the obligation) to edit the content or length, or to entirely remove any Works or third party content, or any portion thereof, that are published to the Web Page or otherwise made available by you to Examiner.com, with or without cause, for any reason or no reason whatsoever, in the sole discretion of Examiner.com or its designees, without providing notice to you. If you wish to challenge the removal of any of your Works from the Web Page, you may send an e-mail to the Local Content Director, however, Examiner.com will have no obligation to respond to such e-mail or take any action with regard thereto.
b) No Work(s) or portion thereof, or any other content published on the Web Page by you or at your direction, may contain:
i) any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, violates another's privacy or rights of publicity, or is hateful, or racially, ethnically or otherwise objectionable;
ii) any content that you know or have reason to know is false, misleading, or fraudulent;
iii) any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
iv) any trademarks or copyrighted material of a third party without the permission of such party;
v) any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any individual or entity;
vi) any information posted primarily for advertising, promotional, or other commercial purposes, including without limitation any request for or solicitation of money, goods, or services for private gain;
vii) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
viii) any content that may be interpreted to promote any illegal activity;
ix) any private information about an identifiable person without that person's permission, or any content soliciting any personal or private information from any individual under the age of 18; or
x) links to any websites containing content violating any of the foregoing requirements, or links to any websites for purposes of disrupting the operations of such website, harassing the owners of such website, or other objectionable or illegal purposes.
c) In addition, you are prohibited from engaging in any of the following activities with regard to the Works and the Services:
i) receiving any gifts, compensation, or other consideration for including certain content on the Web Page, or otherwise engaging in any activity which could impact your ability to remain independent in the performance of the Services;
ii) impersonating any person or entity or falsely stating or otherwise misrepresenting your affiliation with or endorsement by any person or entity;
iii) interfering with or disrupting the Web Page, the Examiner.com website, or servers or networks connected thereto;
iv) violating any local, state, national or international law, rule or regulation; or
v) engaging in, encouraging or facilitating the "stalking" or other harassment of a third party.
d) You acknowledge, consent and agree that Examiner.com may access, preserve, and disclose your personal information and Works or any portion thereof if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Examiner.com Terms of Use; (iii) respond to claims that any Work or other content on the Web Page violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Examiner.com, consumers of Examiner.com’s products and services, and/or the public.
e) You will maintain any source material (including without limitation notes, audio or video recordings, or photographs) used by you in the creation of the Works for a period of three (3) years after first publication of the applicable Work on the Web Page or elsewhere, and you will make such material available to Examiner.com upon request at any time. Examiner.com may copy such materials at its expense and may use such materials for fact checking and verification related to the Works, or may provide any of such materials to a third party if required to do so by law, rule, regulation, or court order, or if otherwise determined as necessary by Examiner.com.
5) Confidential Information: As used herein, "Confidential Information" means any and all technical or business data or information or software furnished, in whatever form or medium, by Examiner.com to you regardless of whether such technical or business data or information is marked or identified as “Confidential,” including without limitation the Product and materials related thereto, and any traffic reports related to the Web Page. You agree to: (i) treat as confidential, and preserve the confidentiality of, all Confidential Information; (ii) use the Confidential Information solely for the purposes of this Agreement; and (iii) not copy such Confidential Information unless specifically authorized by Examiner.com. Nothing in this Agreement may be construed as granting any right or license under any copyrights, trademarks, patents, or other proprietary rights now or hereafter owned or controlled by Examiner.com. You must promptly return all Confidential Information at Examiner.com’s request. These obligations will not apply to any information that: is already in your possession as shown by documentation; without action or fault on your part, is or becomes publicly available; or you have obtained from a third person without breach by such third person of an obligation of confidence.
6) Product License Grant. The Product is protected by copyright laws, international copyright treaties and other intellectual property laws and treaties. The Product is hereby licensed (not sold) to you on a non-exclusive basis, solely for the term of this Agreement, and solely for the purposes of carrying out your obligations under this Agreement. All rights not expressly granted are reserved by Examiner.com. Not limiting the foregoing, this Agreement does not grant you any rights to (and you are prohibited from): (i) granting any sublicense, distributing or transmitting the Product in whole or in part; (ii) modifying the Product; (iii) reverse engineering, decompiling, or disassembling the Product, except as expressly permitted by applicable law; (iv) using any trademarks of Examiner.com; or (v) using the Product other than for the purpose of uploading content to the Web Page pursuant to this Agreement. As between you and Examiner.com, all rights in and to the Product are owned by Examiner.com, including all rights provided under copyright law, trademark law, patent law, trade secret law, and all other forms of proprietary and intellectual property protection.
7) Ownership and License of Works and Web Page:
a) You will retain all right, title and interest in all materials written, prepared or developed by or for you in the course of or resulting from the provision of Services under this Agreement (the "Work(s)"). Examiner.com will retain all right, title and interest in all elements of the Web Page other than the Works, including without limitation the layout, design, and graphics of the Web Page.
b) You hereby grant to Examiner.com a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to:
i) copy, reproduce, distribute, perform, modify, adapt, create derivative works, use, transmit, and display the Works or any part thereof, in any in any manner, media or format now existing or hereafter devised, whether fixed or interactive, including without limitation in print, audio, on the Internet, via wireless network, in databases and compilations, via MP3 players and other devices capable of playing audio content, via cell phones and PDAs, in CD-ROMs and DVDs, and in the websites and print newspapers of Examiner.com and Affiliates;
ii) use, copy, transmit, display and otherwise promote your name, image, likeness, and biographic information in connection with the exercise of the rights granted herein, including without limitation in connection with the advertising, promotion, and publication of the Works in any manner, media or format now existing or hereafter devised; and
iii) sublicense, syndicate, or otherwise grant third parties any of the rights described in this subsection 7(b), without any obligation of notice or compensation to you.
c) Examiner.com hereby acknowledges that all right, title and interest in the Works belongs to you, provided however that Examiner.com or its sublicensees may apply for or seek to obtain copyright, trademark, or any other property right with regard to the Web Page and/or any derivative works created by Examiner.com or its sublicensees based on or including any or all of the Works. You will not object to or challenge the rights of Examiner.com or its sublicensees in and to any such derivative works created by any of them, and will not object to or challenge any registration or application for any such rights. You will not make any claim under this Agreement or otherwise, to have any right, copyright, title, or interest of any kind or nature whatsoever, in any material or media created by Examiner.com in which any Work or portion thereof appears. At no additional charge, you will execute all papers (including assignments) and do all things required in order to evidence, perfect, obtain, protect defend, convey and enforce the rights of Examiner.com in any derivative works created by Examiner.com or its sublicensees based on or incorporating any Work or portion thereof. Nothing in this Agreement may be construed as granting any right or license under any trademarks, copyrights, inventions or patents now or hereafter owned or controlled by Examiner.com.
8) Injunctive Relief. You acknowledge that a breach, actual or threatened, of Sections 4, 5, 6, 7, or 9 will cause irreparable harm to Examiner.com, the amount of which may be extremely difficult to estimate, thus making any remedy at law inadequate. Examiner.com will therefore be entitled to seek immediate injunctive relief and any other relief Examiner.com deems appropriate from a court of competent jurisdiction without having to post a bond or other security. This right shall be in addition to any other remedy available to Examiner.com in law or equity.
9) Warranties. You hereby represent and warrant that: (i) all Works will comply with the requirements set forth in this Agreement; (ii) you are at least 18 years old, you have the full mental and legal capacity, power, and authority to enter into this Agreement, and your performance of the Services and all terms of this Agreement will not breach any agreement that you have with another party; (iii) the Works are original and you are the sole author of the Works and the sole owner of all rights therein, or if you have included any portions of third party copyrighted works within the Works or otherwise included third party content on the Web Page, such inclusions either constitute “fair use” under the U.S. Copyright Act, or you have (or will prior to the posting of any such content on the Web Page or other submission thereof to Examiner.com) obtained permission for any applicable third party copyrighted works with regard to all of the rights granted to Examiner.com herein, without payment to such third party, and without attribution to such party unless disclosed to Examiner.com; (iv) you have neither received nor arranged to receive any compensation from any manufacturer of any product, provider of any service, or any other person or entity mentioned in any of the Works; (v) you have disclosed all potential conflicts of interest arising out of your employment or interest in products, companies, or publications mentioned in the Works or competing with those products, companies or publications; (vi) you will perform the Services in a professional and ethical manner, consistent with the highest industry standards, and (vii) you will abide by all applicable laws and regulations, and any of Examiner.com’s rules, in the course of performing the Services.
10) Indemnification: You agree to indemnify, defend, and hold harmless Examiner.com and/or its licensees against any and all claims, suits, losses, liabilities, and/or judgments, including costs, expenses, damages, and legal fees based upon and arising from (i) your violation of the rights of others; (ii) your breach of any of the foregoing warranties; (iii) your violation of any other terms of this Agreement; or (iv) your access to, and use of, the Product.
a) Your use of the Product is at your own risk. If you are dissatisfied with the Product, or with any terms of this Agreement, your sole and exclusive remedy is to discontinue accessing and using the Product. Examiner.com assumes no responsibility and shall not be liable for the accuracy, completeness, timeliness, reliability, relevance or usefulness of the Product. Examiner.com reserves the right to make changes and corrections to the Product at any time, without notice. Examiner.com also assumes no responsibility and shall not be liable for any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, or use of this Product or your downloading of any materials contained within or accessed from the Product. You assume total responsibility for establishing such procedures for data back up and virus checking as you consider necessary.
b) THE PRODUCT AND ANY MATERIALS PROVIDED BY EXAMINER.COM THEREWITH, AND ALL ELEMENTS OF THE WEB PAGE PROVIDED BY EXAMINER.COM, ARE PROVIDED AS IS. EXAMINER.COM (AND ITS SUPPLIERS AND AFFILIATES) MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OR RESULTS YOU MAY OBTAIN AS A RESULT OF PERFORMING THE SERVICES AND/OR USING THE PRODUCT, AND PROVIDE NO GUARANTEE AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. IN NO EVENT WILL EXAMINER.COM (OR ITS SUPPLIERS AND AFFILIATES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIM ARISING IN CONNECTION WITH THE USE OF THE PRODUCT, OR FOR RELIANCE ON ANY OF THE MATERIALS PROVIDED THEREIN, INCLUDING WITHOUT LIMITATION ANY QUOTES OR DATA VIEWABLE WITH THE PRODUCT. EXAMINER.COM (AND ITS SUPPLIERS AND AFFILIATES) EXPRESSLY DISCLAIM ALL LIABILITY FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OF, THE PRODUCT AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR LACK OF VIRUSES, WITH REGARD TO THE PRODUCT AND THE WEB PAGE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EXAMINER.COM (OR ITS SUPPLIERS AND AFFILIATES) BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY INJURY TO PERSON OR PROPERTY, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE WEB PAGE, OR OTHERWISE arising out of OR RELATED TO THIS AGREEMENT, INCLUDING the EXERCISE OF ANY RIGHTS GRANTED TO EXAMINER.COM HEREUNDER, EVEN IF EXAMINER.COM (OR ITS SUPPLIERS AND AFFILIATES) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EXAMINER.COM'S LIABILITY (OR THAT OF ITS SUPPLIERS AND AFFILIATES) EXCEED $100. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential, or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
12) Insurance: You understand that unless you are otherwise notified by Examiner.com in writing, you, the Services, the Works, and any other content you post to the Web Page will not be covered under any insurance policy of Examiner.com, and it is your own responsibility to contract for any insurance coverage you may wish to obtain. Examiner.com may decide at any time in its sole discretion whether or not to add you or remove you from coverage under any Examiner.com insurance policy.
13) Independent Contractor: You will perform your obligations hereunder as an independent contractor and not as the agent or employee of Examiner.com. You are not required to work exclusively for Examiner.com during the Term. You do not have the authority to act for Examiner.com or to bind Examiner.com in any respect whatsoever. You will be responsible for supplying all labor, tools, equipment, Internet connections, and materials necessary to provide the Services, with the exception of the Product. You will not be entitled to any benefits or compensation from Examiner.com, other than as expressly set forth herein. YOU ACKNOWLEDGE THAT YOU ARE NOT ENTITLED TO WORKER’S COMPENSATION BENEFITS AND THAT YOU ARE SOLELY RESPONSIBLE FOR PAYING FEDERAL, STATE AND LOCAL INCOME TAX ON ANY INCENTIVE EARNED PURSUANT TO THE CONTRACT RELATIONSHIP.
14) Assignment and Delegation: You may not assign, transfer, or sublicense any rights or interests in this Agreement or delegate any obligations hereunder without written permission of Examiner.com; and any attempted assignment, transfer, or sublicense by you is void. All Services must be performed by you personally. Examiner.com may assign this Agreement to any of its Affiliates without notice to you.