These Terms of Service constitute a legally binding agreement between you and Sage Media Network, Inc. (together with its affiliates, "Company", "we," "our" or "us") governing your use of the Platform (as defined below), our mobile application (the "App") and our website (the "Site"). The related services provided by Company to potential Content Creators and Client (each as defined in Section 1), the Site, and the App are collectively referred to as the "Platform."
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "I AGREE" OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, DOWNLOADING THE APP OR ANY APP UPGRADES, USING THE APP ON YOUR MOBILE DEVICE, OR ACCESSING OR USING THE PLATFORM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE OR THE APP. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE PLATFORM.
The terms and conditions of the Content Submission Agreement set forth on Exhibit A (the “Content Submission Agreement”) shall be applicable only to individuals or entities who sign up for the Platform that Sage, in its sole and absolute discretion, deems to be a Content Creator (defined below); provided that such Content Submission Agreement shall only be applicable if, and only if, such Content Creator has not signed a standalone agreement with terms and conditions substantially similar to the Content Submission Agreement.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND COMPANY CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 16). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING, IF APPLICABLE, YOUR RIGHT TO OPT OUT OF ARBITRATION.
1. The Platform
The Platform is a web and mobile application-based content subscription service and social networking platform which enables Clients to purchase from Content Creators: (i) written, audio, audiovisual, or other content on a subscription basis ("Subscription Content"); or (ii) written, audio, audiovisual, or other content on a one-time basis (e.g. the opportunity to ask Content Creators a question, have Content Creators create a video for Clients, etc.) ("A-La-Carte Content" and together with the Subscription Content, the "Services"). The Services shall be developed by Content Creators and made available on the Platform by the Company. "Clients" are individuals seeking to purchase Subscription Content and/or A-La-Carte Content developed by Content Creators. "Content Creators" are individuals and/or businesses who provide Services on the Platform or are otherwise classified as "Content Creators" by the Company. Clients and Content Creators together are hereinafter referred to as "Users." If you agree on the terms of the Services with another User, you and such other User form a Service Contract (as defined below) directly between the two of you as set forth in more detail in Section 3 below.
CONTENT CREATORS ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF THE COMPANY. THE COMPANY DOES NOT PERFORM SERVICES AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES. USERS HEREBY ACKNOWLEDGE THAT THE COMPANY DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A CONTENT CREATOR'S WORK AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
The Platform only enables coordination and communication between Users for the fulfillment of Services. The Company is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Services or Users, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users or of any ratings provided by Users with respect to each other. The Company makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the Services requested or Services provided by, or the communications of or between, Users identified through the Platform, whether in public, private, or offline interactions or otherwise howsoever.
2. Account, Password, Security, and Mobile Phone Use
You must register with Company and create an account to use the Platform (an "Account") and as part of that process you will be requested to provide certain information, including without limitation your name, full address, phone number and email address. By using the Platform, you agree to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. You are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any log-in, password, and Account number provided by you or given to you by Company for accessing the Platform. You are solely and fully responsible for all activities that occur under your password or Account, even if not authorized by you. Company has no control over the use of any User's Account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you agree to contact Company immediately. The person signing up for the Platform will be the contracting party ("Account Owner") for the purposes of these terms of service and will be the person who is authorized to use any corresponding Account we provide to the Account Owner in connection with the Platform; provided, however, that if you are signing up for the Platform on behalf of your employer, your employer shall be the Account Owner. As the Account Owner, you are solely responsible for complying with these terms of service and only you are entitled to all benefits accruing thereto. Your Account is not transferable to any other person or account. You must immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of our security or the security of your Account. By providing your mobile phone number and using the Platform, you hereby affirmatively consent to Company's use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to: (i) perform and improve upon the Platform; (ii) facilitate the carrying out our services; (iii) provide you with information and reminders regarding your registration, changes and updates, service outages or alterations; (iv) connect you to a Content Creator; and (v) share with other Users in private when all Users accept one another's Services. These calls and texts may include, among other things, reminders about upcoming services on the Platform and/or push notifications and other reminders delivered through our App. Company will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your Account settings on the Site or the App, texting "STOP" in response to any texts, or by emailing email@example.com and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing firstname.lastname@example.org and specifying you want to opt-out of calls. You understand that we may send you a text confirming any opt-out by you.
3. Contract between Clients and Content Creators / Terms of Sale
You acknowledge and agree that a legally binding contract (the "Service Contract") is formed when you agree to purchase Services from another User. Client and Content Creators are responsible for abiding by contract formation laws and requirements and have complete discretion both with regard to whether to enter into a written Service Contract with each other and with regard to the terms of any Service Contract, provided that any such agreements (other than the Content Submission Agreement) do not conflict with, narrow, or expand the Company's rights and obligations under this Agreement and provided that such agreements abide by required law. The terms of the Service Contract shall be deemed to include the terms set forth in this section. You understand that you are not buying directly from the Company, but from the Content Creator, an independent party. The Company does not warrant that the quality of the Services will meet your expectations. Any legal claim related to the Services you purchase must be brought directly against the Content Creator. You release the Company from any claims related to the Services sold through the Platform, including for defective items, misrepresentations by the Content Creators. All prices advertised by Content Creators are subject to such changes. The Content Creators reserve the right to refuse any order or other request made by another User. The Client will receive a confirmation email from the Content Creator if the order is accepted. A contract between the Content Creator and the Client will not be formed until the Content Creator sends the email confirmation. By providing Services on the Platform, the Content Creators certify that they have provided accurate item descriptions to the Clients. However, typographical errors, inaccuracies or omissions relating to Services descriptions, and pricing may occur. We undertake no obligation to update, amend, or clarify information in the Platform or on any related website, including without limitation, pricing information, except as required by law. We are not responsible if information on the Platform is not accurate, complete or current. Any reliance on the Services information is at your own risk. The Company's role is restricted solely limited to providing the Platform where Clients may purchase Services from Content Creators and to facilitate payment between the parties using the applicable third party payment processing system (the "PSP"). In acting as the limited payment facilitation agent for particular Services, the Company disclaims any other agency or authority to act on behalf of the Content Creator or the Client, and assumes no liability or responsibility for any acts or omissions of the Content Creator or the Client, either within or outside of the Platform. The Client shall pay their Content Creator directly for the Services through the PSP as indicated on the Platform at the rates agreed to by the parties in the Service Contract. Each User agrees to comply with the Service Contract and this Agreement during the engagement, performance and completion of a Service. Both Users agree to notify the Company of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally for at least 30 days after notification (via certified mail or personal delivery) before initiating any proceeding. The Company reserves the right to suspend or terminate any Account pending the resolution of any dispute.
4. Billing and Payment
Users of the Platform contract for Services directly with other Users and each Content Creator provides pricing via the Platform. Payment for Services is made directly from the Client to the Company via the PSP. The Company shall tender payment to each Content Creator pursuant to the applicable Content Submission Agreement between the Company and such Content Creator. Clients will be solely responsible for paying for the Service and the Company is not obligated to pay Content Creator for Client's failure to pay. Payment and any other expenses must be paid through the PSP as indicated on the Platform. You may be required to register with the PSP, agree to terms of service of the PSP, provide your payment details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the "PSP Services Agreement"). By accepting these Terms of Service, each User agrees that they have downloaded or printed, and reviewed and agreed to, the PSP Services Agreement. Please note that the Company is not a party to the PSP Services Agreement and that you, the PSP and any other parties listed in the PSP Services Agreement are the parties to the PSP Services Agreement and that the Company has no obligations, responsibility or liability to any User or any other party under the PSP Services Agreement. All prices and fees displayed on the Platform are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services or other taxes, fees or charges now in force or enacted in the future ("Taxes"). Any applicable Taxes are based on the rates applicable to the billing address you provide to us, and will be calculated at the time of a transaction is charged to your Account. Unless otherwise indicated, all prices, fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.
5. User Generated Content
"User Generated Content" is defined as any content, information, and materials that may be textual, audio, or visual that you provide, submit, upload, publish, or make otherwise available to the Platform and its Users, including without limitation to images and information of Services. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Company: • Is not involved in the creation or development of User Generated Content. • Disclaims any responsibility for User Generated Content. • Cannot be liable for claims arising out of or relating to User Generated Content. • Is not obligated to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Platform at its sole discretion. You hereby represent and warrant to the Company that your User Generated Content: (i) will not be false, inaccurate, incomplete or misleading; (ii) will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary right or rights of publicity, personality or privacy; (iii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising, anti-spam or privacy); (iv) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (v) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (vi) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vii) will not represent you being employed or directly engaged by or affiliated with Company or purport you to act as a representative or agent of Company; and (viii) will not create liability for the Company or cause the Company to lose (in whole or in part) the services of its ISPs or other suppliers. By making available any User Generated Content through the Platform, you hereby grant to the Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Generated Content on, through or by means of the Platform. We do not claim any ownership rights in any such User Generated Content and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Generated Content. We do not assert any ownership over your User Generated Content. You retain full ownership of all your User Generated Content and any intellectual property rights associated with your User Generated Content. We are not liable for any statements or representations in your User Generated Content. You are solely responsible for your User Generated Content and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your User Generated Content. We have the right, in our sole and absolute discretion: (i) to edit, redact, or otherwise change the User Generated Content; (ii) re-categorize any User Generated Content to place them in more appropriate locations on the Platform; and (iii) to pre-screen or delete any User Generated Content at any time and for any reason, without notice. We have no obligation to monitor your User Generated Content.
6. Representations and Warranties
NEITHER THE COMPANY NOR ITS AFFILIATES, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, LICENSORS, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS "COMPANY AND AFFILIATES") IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE COMPANY AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PLATFORM.
7. Mobile App Updates and Upgrades
8. Termination and Suspension
Unless otherwise agreed to in writing between you and the Company, either party may terminate these terms of service for any or no cause, at any time. You may cancel and delete your Account at any time by either using the features on the Platform to do so (if applicable and available) or by written notice to email@example.com. After cancellation, you will no longer have access to your Account, your profile or any other information through the Platform. The provisions of these terms of service which by their intent or meaning intended to survive such termination, including without limitation the provisions relating to disclaimer of warranties, limitations of liability, and indemnification, shall survive the any termination of these terms of service and any termination of your use of or subscription to the Platform and shall continue to apply indefinitely. We reserve the right to refuse the Platform to anyone for any reason at any time. The Company may terminate or limit your right to use the Platform in the event that we are investigating or believe that you have breached any provision of this Agreement, by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. If the Company terminates or limits your right to use the Platform pursuant to this section, you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. Even after your right to use the Platform is terminated or limited, this Agreement will remain enforceable against you. The Company reserves the right to take appropriate legal action, including but not limited to pursuing arbitration in accordance with Section 16 of these Terms of Service. The Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Platform at its sole discretion. The Company is not liable to you for any modification or discontinuance of all or any portion of the Platform. The Company has the right to restrict anyone from completing registration as a User if the Company believes such person may threaten the safety and integrity of the Platform, or if, in Company's discretion, such restriction is necessary to address any other reasonable business concern. Following the termination or cancellation of your Account: (i) we reserve the right to delete all your data, including any User Generated Content, in the normal course of operation; and (ii) you shall have no right to receive a refund for amounts paid for the Services. Your data cannot be recovered once your Account is terminated or cancelled.
9. Links to Third-Party Websites
The Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by the Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. The Company does not control any such websites, and is not responsible for their: (i) availability or accuracy; or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that the Company is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that the Company has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Platform at its sole discretion. The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites. You access such third-party websites at your own risk. The Company expressly disclaims any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Platform. You hereby agree to hold the Company harmless from any liability that may result from the use of links that may appear on the Platform. As part of the functionality of the Platform, you may link your Account with online accounts you may have with third-party service providers (such as Facebook) (each such account, a "Third-Party Account") by either: (i) providing your Third-Party Account login information through the Platform; or (ii) allowing the Company to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to the Company and/or grant the Company access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating the Company to pay any fees or making the Company subject to any usage limitations imposed by such third-party service providers. By granting the Company access to any Third-Party Accounts, you understand that (1) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third-Party Account (the "SNS Content") so that it is available on and through the Platform via your Account, including without limitation any friend lists, and (2) the Company may submit and receive additional information to your Third-Party Account to the extent you are notified of this when you link your Account with the Third-Party Account. Unless otherwise specified in these Terms of Service, all SNS Content, if any, shall be considered to be User Generated Content. Depending on the Third-Party Accounts you choose, and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Platform. Please note that if a Third-Party Account or associated service becomes unavailable or the Company's access to such Third-Party Account is terminated by the third-party service provider, then SNS Content may no longer be available on and through the Platform. You will have the ability to disable the connection between your Account on the Platform and your Third-Party Accounts at any time, as set forth below. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY PROVIDERS. The Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and the Company is not responsible for any SNS Content.
10. Worker Classification and Withholdings
AS SET FORTH IN SECTION 1, THE COMPANY DOES NOT PERFORM SERVICES OR SELL PRODUCTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM SERVICES OR SELL PRODUCTS. EACH USER ASSUMES ALL LIABILITY FOR PROPER CLASSIFICATION OF SUCH USER'S WORKERS BASED ON APPLICABLE LEGAL GUIDELINES. IF A CLIENT, YOU INDEMNIFY AND HOLD THE COMPANY AND ITS AFFILIATES HARMLESS, AND IF A CONTENT CREATOR, YOU FULLY AND FINALLY RELEASE THE COMPANY AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DEMANDS, DAMAGES, LOSSES, FINES, PENALTIES OR OTHER COSTS OR EXPENSES THAT CONTENT CREATOR OR ASSISTANTS MAY INCUR OR BECOME ENTITLED TO, WHETHER UNDER CONTRACT, COMMON LAW, CIVIL LAW, STATUTE OR OTHERWISE, IN RESPECT OF SERVICES OR SERVICE CONTRACTS OR THE USE OF THE PLATFORM, INCLUDING WITH RESPECT TO MISCLASSIFICATION OF CONTENT CREATORS AND ASSISTANTS AND THE TERMINATION OR CESSATION OF ANY SERVICE, SERVICE CONTRACTS, THIS AGREEMENT OR THE USE OF THE PLATFORM.
Users do not have authority to enter into written or oral—whether implied or express—contracts on behalf of the Company. Each User acknowledges and agrees that the Company does not, in any way, supervise, scope, direct, control or monitor a Content Creator's work or Services performed in any manner. the Company does not set a Content Creator's work hours or location of work. The Company will not provide any equipment, tools, labor or materials needed for a particular Service. The Company does not provide any supervision to Users. This Section 10 in no way limits the generality of Section 14.
11. Intellectual Property Rights
All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, trademarks, logos, typefaces and other content (collectively "Proprietary Material") that Users see or read through the Platform is owned by the Company, excluding User Generated Content, which Users hereby grant the Company a license to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. the Company owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended. The Proprietary Material is protected by the domestic and international laws governing copyright, patents, and other proprietary rights. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Platform without the Company's express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of the Company and, if applicable, the holder of the rights to the User Generated Content. The service marks and trademarks of the Company, including without limitation the Company and Company logos, are service marks owned by the Company. Any other trademarks, service marks, logos and/or trade names appearing via the Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner. Additionally, you may choose to or we may invite you to submit comments, ideas, or feedback about the Platform, including without limitation about how to improve our services or our products ("Feedback"). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction and will not place the Company under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, the Company does not waive any rights to use similar or related Feedback previously known to the Company, developed by its employees, or obtained from sources other than you. You acknowledge that all email and other correspondence that you submit to us shall become our sole and exclusive property. Subject to the terms and conditions hereof, you are hereby granted a limited, nonexclusive, nontransferable, freely revocable, license to access and use the Platform. We may terminate this license at any time for any reason or no reason. The Platform and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Platform, and copyrights (the "Company Content"), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of the Company or, as applicable, its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Platform. Use of the Company Content or materials on the Platform for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. Your use of the Platform and the relating licenses granted hereunder are also conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines and any end user licenses associated with your use of the App. The Company may modify such guidelines in its sole discretion at any time. The Company reserves the right to terminate your Account and access to the Platform if it determines that you have violated any such applicable guidelines.
12. Copyright Complaints and Copyright Agent
The Company respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Platform infringe upon your copyright or other intellectual property right, please send the following information to the Company's Copyright Agent at Attn: Copyright Agent, 401 Broadway, Ste 1610, New York, NY, firstname.lastname@example.org • A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Platform where the material you claim is infringed is located. Include enough information to allow the Company to locate the material, and explain why you think an infringement has taken place; • A description of the location where the original or an authorized copy of the copyrighted work exists—for example, the URL (Internet address) where it is posted or the name of the book in which it has been published; • Your address, telephone number, and e-mail address; • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; • A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner's behalf; and • An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
13. Confidential Information
You acknowledge that Confidential Information (as defined below) is a valuable, special and unique asset of the Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than using the Platform in accordance with these Terms of Service. If relevant, you may disclose the Confidential Information to your authorized employees and agents provided that they are also bound to maintain the confidentiality of Confidential Information. You shall promptly notify the Company in writing of any circumstances that may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to the Company upon termination of this Agreement for any reason whatsoever. The term "Confidential Information" shall mean any and all of the Company's trade secrets, confidential and proprietary information, and all other information and data of the Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, strategic and other proprietary and confidential information relating to the Company or the Company's business, operations or properties, including information about the Company's staff, Users or partners, or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.
14. Disclaimer of Warranties
THE PLATFORM IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY IN CONTRACT, WARRANTY OR IN TORT FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; AND (IV) EVENTS BEYOND OUR REASONABLE CONTROL. THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED ON THE PLATFORM. UNDER NO CIRCUMSTANCES WILL THE COMPANY AND AFFILIATES OR THEIR CORPORATE PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ACTUAL, CONSEQUENTIAL, ECONOMIC, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE COMPANY, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES) ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU IN THEIR ENTIRETY. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT THE COMPANY AND AFFILIATES OR THEIR CORPORATE PARTNERS ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE LOWER OF (I) THE TOTAL FEES PAID BY YOU TO THE COMPANY DURING THE SIX MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE OR (II) ONE HUNDRED DOLLARS ($100), TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, attorneys, insurers, successors and assigns (the "Indemnified Parties") from and against any and all Liabilities incurred in connection with: (i) your use or inability to use the Platform or perform Services; (ii) your breach or violation of this Agreement; (iii) your violation of any law, or the rights of any User or third party; and/or (iv) any content submitted by you or using your Account to the Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. The Company reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of the Company.
16. Dispute Resolution—Arbitration & Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY—IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND THE COMPANY CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND THE COMPANY TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
You agree that, in the event any dispute or claim arises out of or relating to your use of the Platform, you will contact us at email@example.com and you and the Company will attempt in good faith to negotiate a written resolution of the matter directly. You agree that if the matter remains unresolved for 30 days after notification (via certified mail or personal delivery), such matter will be deemed a "Dispute" as defined below. Except for the right to seek injunctive or other equitable relief described under the "Binding Arbitration" section below, should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorneys' fees, even if you may have been entitled to them otherwise. Binding Arbitration. You and the Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Platform (collectively "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and the Company both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against the Company in "small claims" court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis. Class Action Waiver. You and the Company agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and the Company both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and the Company agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person's claims and may not preside over any form of class action proceeding. Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution' section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879). Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA's roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules. Arbitration Location and Procedure. Unless you and the Company agree otherwise, the seat of the arbitration shall be in New York, New York. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and the Company submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties. Arbitrator's Decision and Governing Law. The arbitrator shall apply New York law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the "Disclaimers and Limitations of Liability" section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant's individual claim. Fees. Each party's responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
17. Governing Law
Except as provided in Section 16 or expressly provided in writing otherwise, this Agreement and your use of the Platform will be governed by, and will be construed under, the laws of the State of New York, without regard to choice of law principles. This choice of law provision is only intended to specify the use of New York law to interpret this Agreement.
18. No Agency; No Employment
No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement.
19. General Provisions
Failure by the Company to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the complete and exclusive agreement between you and the Company with respect to its subject matter, and supersedes and governs any and all prior agreements or communications. The provisions of this Agreement are intended to be interpreted in a manner which makes them valid, legal, and enforceable. Except for the "Class Action Waiver" in Section 16, in the event any provision is found to be partially or wholly invalid, illegal or unenforceable: (i) such provision shall be modified or restructured to the extent and in the manner necessary to render it valid, legal, and enforceable; or (ii) if such provision cannot be so modified or restructured, it shall be excised from the Agreement without affecting the validity, legality or enforceability of any of the remaining provisions. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (1) to a parent or subsidiary; (2) to an acquirer of assets; or (3) to any other successor or acquirer. Any assignment in violation of this section shall be null and void. This Agreement will inure to the benefit of the Company, its successors and assigns.
20. Changes to this Agreement and the Platform
21. No Rights of Third Parties
None of the terms of this Agreement are enforceable by any persons who are not a party to this Agreement.
22. Notices and Consent to Receive Notices Electronically
You consent to receive any agreements, notices, disclosures and other communications (collectively, "Notices") to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on this Site. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.
23. Contacting Us
If you have any questions about these Terms of Service or about the Platform, please contact us by email at firstname.lastname@example.org or by mail to Sage Media Network, Inc., 401 Broadway, Ste. 1610, New York, NY 10013.
CONTENT SUBMISSION AGREEMENT
This Content Submission Agreement ("Agreement") by and between you ("Content Creator", "you", or "your") and Sage Media Network, Inc. ("Sage", "we", or "us" or "our"), is effective as of the date you first click "I agree" (or similar button or checkbox) on the Platform (the "Effective Date"), for the purpose of setting forth the terms and conditions by which Sage will engage Content Creator to develop and Submit (as defined below) Content (as defined below) for Sage's Platform (as defined below). For purposes of this Agreement, "Sage" includes Sage Media Network, Inc. and its affiliates, subsidiaries, distributors, successors, assigns, licensees, designees and sublicensees. For the avoidance of doubt, this Agreement shall only be applicable to individuals or entities who sign up for the Platform that Sage, in its sole and absolute discretion, deems to be a Content Creator.Sage owns and operates a content subscription service and social networking platform, including as available through Sagespot.com, as well as other video, audio and content online offerings of Sage (collectively, the "Platform"). The Platform allows content owners to Submit (as defined below) high- quality written, audio and audiovisual content to the Platform, and which Sage will then make available for access by end-users of the Platform on a subscription basis ("Subscription Content"), or via a-la- carte video or other offerings accessed by the end-user who purchased such one-time, end-user-specific offering (e.g. the opportunity to ask you a question, have you create a video for them, etc.) ("A-La-Carte Content"). A-La-Carte Content and Subscription Content are each referred to herein individually and collectively as "Content". The Platform's end-users then pay a subscription fee to access such Subscription Content from the Platform, and pay a flat fee for any A-La-Carte Content they purchase and access from the Platform. Sage will then share a portion of those fees with the content owners as further outlined below. For purposes of this Agreement, to "Submit" content means to post either (a) Subscription Content to your dedicated profile page on the Platform (the "Content Creator Page"), accessible via a webpage on the Platform or other method of access we will provide you, or (b) A-La- Carte Content to the message thread with the end-user who purchased such A-La-Carte Content, accessible via the "Messaging" feature on the Content Creator Page (the "Message Thread"). For the avoidance of doubt, Subscription Content posted to the Content Creator Page will be accessible to all end- users who subscribe to the Content Creator Page via the Platform, and A-La-Carte Content will only be accessible to end-users who purchase such A-La-Carte Content.In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:
1. License; Content Obligations.
a. License of Content to Sage. When you Submit your Content to the Platform in accordance with this Agreement, such Content will be designated as Subscription Content if Submitted via the Content Creator Page, or A-La-Carte Content if submitted via the applicable Message Thread. You may, in your discretion, re-Submit A-La-Carte Content as Subscription Content with written notice to Sage. Content you Submit will be exclusively licensed to Sage (meaning you will retain ownership of the Content subject to the license granted to us), as further explained below. Subject to any Pre-Existing Licenses (as defined below), Content Creator hereby grants to Sage a worldwide, exclusive (as specified in Section 1(b) below), transferable, sublicenseable (through multiple tiers) license during the Term and Transition Period (each as defined below) to: (i) use, copy, reproduce, process, modify, perform, publish, transmit, display, distribute and otherwise exploit, through or on the Platform or as otherwise expressly permitted in this Agreement, 1 including on features or pages other than the Content Creator Page on or related to the Platform (e.g. top ten lists, featured content creator pages, podcasts hosted by Sage, etc.), the A-La-Carte Content and the Subscription Content, including, (A) with respect to A-La-Carte Content, the right to grant to the end-user of the Platform who purchased such A-La-Carte Content, a limited, non-exclusive sublicense to stream, display, view, use and/or play the A-La-Carte Content for personal, non-commercial use, and (B) with respect to Subscription Content, the right to grant to end-users of the Platform a limited, non-exclusive sublicense to stream, display, view, use and/or play the Subscription Content for personal, non-commercial use; and (ii) use the A-La-Carte Content and the Subscription Content to advertise, market and promote the A-La-Carte Content, the Subscription Content or Platform in any and all media (including by creating advertisements, trailers, and other materials derived from the A-La-Carte Content or Subscription Content for the purposes of marketing the A-La-Carte Content, the Subscription Content or Platform)
b. Exclusive Relationship. With respect to the A-La-Carte Content and Subscription Content that Content Creator Submits hereunder, Content Creator acknowledges and agrees that by granting Sage an exclusive license to A-La-Carte Content or Subscription Content to Sage Content Creator may not itself publish, transmit, display, distribute or otherwise make available or exploit, or license any such rights to (other than the license in the A-La-Carte Content and Subscription Content specified above), such A-La-Carte Content or Subscription Content during the applicable Term and Transition Period, except that (i) Content Creator may post on its personal free-to-the- public third party platforms (e.g. Content Creator's Facebook page, Twitter account, etc.) screenshots and limited content clips of the Content to advertise, market and promote the Platform, the Content Creator Page and the Content; and (ii) such exclusive license shall not restrict or prohibit any rights granted in such Content under any Pre-Existing Licenses, which rights shall remain with its applicable licensees but only for the duration of such Pre-Existing Licenses. For purposes of this Agreement, “Pre-Existing Licenses” are any license agreements that meet each of the following criteria, (x) agreements that Content Creator already entered into at the time A-La-Carte Content or Subscription Content was Submitted hereunder, and (y) agreements under which Content Creator grants to the applicable licensee a non-exclusive right and license to use, display, transmit perform, publish, distribute or otherwise exploit, through or on the Platform the applicable A-La-Carte Content or Subscription Content that was Submitted. For clarity, if Content Creator does provide written notice to Sage of any Pre-Existing Licenses prior to Submitting any Content, Content Creator hereby represents, warrants and covenants that no Pre-Existing Licenses exist as of the date hereof nor will any Pre-Existing Licenses become effective during the Term or Transition Period.
c. Publicity License; Platform Release. If the Content Creator is an individual, Content Creator hereby grants to Sage a worldwide, exclusive, transferable, sublicenseable (through multiple tiers) license during the Term and Transition Period (each as defined below) to use Content Creator's name, image, photo, likeness and voice in connection with the advertising and marketing of the Content or Platform (the “NIL License”) so long as no endorsement or testimonial of the commercial products or services is attributed to Content Creator; provided, however that Content Creator hereby grants Sage an NIL License to feature on the Platform endorsements and/or testimonials regarding the Platform made by Content Creator with the express written or verbal consent of the Content Creator. You further grant Sage and its affiliates, agents, service providers, partners, and other connected third parties a royalty-free license to use your name, image, voice, and likeness to identify you as the source of any of your Content. Sage may not use Content Creator's name to endorse any merchandising item or in any commercial tie- up without Content Creator's prior written approval. Content Creator agrees to provide valid and accurate personal releases, substantially similar to the release set forth in Exhibit A-1, for all Content that Content Creator Submits to the Platform that, in Sage's judgment, contains an identifiable, voice, face or identifiable human figure or other identifiable attribute (“Identifying 2 Feature”). If Content Creator does not have a personal release for Content that contains an Identifying Feature, Sage may choose to accept the Content without it being designated as “reviewed”. Content Creator agrees that Content Creator is solely responsible for retaining all original personal releases and maintaining complete and accurate personal release records. Personal releases are to be delivered to Sage with the Content. Further, Content Creator acknowledges that Sage is not giving legal advice to Content Creator. The submission of falsified, inaccurate or otherwise defective personal releases is a material breach of this Agreement and can result in the immediate termination of Content Creator's account without prior notice.
d. Acceptance and Use of Content; Advertising. Sage has the right to refuse to accept any Content that Content Creator Submits for any reason. If Sage refuses to accept any such Content then the terms of this Agreement other than Sections 2(b) and 5 hereunder will not apply to any such refused Content. In addition, Sage has the right to remove any Content from the Platform for any reason, including if Sage suspects that the Content will subject Sage or any of its officers, managers, directors or employees to legal action, the Content violates the terms of this Agreement or the Platform Terms in any way, the Content violates intellectual property rights of Sage or any other party, the Content violates a third party's rights including those of privacy or publicity, or the Content includes material that is harmful, hateful, discriminatory, cruel or insensitive, unethical, illegal, deceptive, fraudulent, threatening, inciting, organizing, promoting or facilitating violence or criminal or harmful activities, defamatory, obscene or otherwise objectionable. Sage will have NO liability to Content Creator for the removal of any Content for any reason. Content Creator understands and agrees that Sage has no obligation to display or feature the Content on the Platform or to otherwise use the Content, for any reason or for no reason. Sage shall have the right to sell any and all advertising inventory within or in proximity to the Content including, but not limited to, all pre-roll, mid-roll and post-roll video advertisements, and ad overlays.
e. Platform Terms. Content Creator hereby agrees to abide by the terms of service and any and all guidelines, policies, and terms applicable to and available on the Platform, as such guidelines, policies, and terms may be amended from time to time in accordance with the terms therein (the "Platform Terms"). In the event of a conflict between the terms in the Platform Terms, on the one hand, and this Agreement, on the other hand, the terms in this Agreement shall supersede and prevail.
f. Limited Right to Edit Content. Without limiting the foregoing, Content Creator agrees that Sage shall have the right (i) to combine any of the Content with such other content or material as Sage in its sole discretion shall determine, and (ii) to make, by any means, shorter, altered or edited versions of any of the Content, each case of (i) and (ii), solely for the limited purpose of using such versions to advertise, market and promote the A-La-Carte Content, the Subscription Content, the Content Creator Page or the Platform in any and all media (including by creating advertisements, trailers, and other materials derived from the A-La-Carte Content or Subscription Content for the purposes of marketing the A-La-Carte Content, the Subscription Content, the Content Creator Page or Platform). In addition, Sage may take reasonable measures to ensure that the Content complies with the requirements set forth in this Agreement as well as the Platform Terms, including making edits or adjustments to the Content, such as removing, blurring, bleeping, or otherwise obfuscating any elements contained in the Content to ensure such compliance. Notwithstanding anything to the contrary in this Section 1(f), Sage agrees not to remove or alter any copyright or proprietary notices from Content without Content Creatorapos;s prior written permission.
i. Content. As between the parties, Content Creator owns all rights in and to the Content as provided to Sage, subject to the license grants specified herein
ii. Platform. Sage shall remain the sole and exclusive owner of the Platform
h. Attribution. Content Creator hereby acknowledges and agrees that neither Content Creator nor any third party shall be entitled to any credit or other attribution in connection with any use of the Content as permitted under this Agreement; provided that, Sage may determine, in its sole and absolute discretion, to afford Content Creator credit or other attribution in connection with Sage's use of the Content on the Platform in accordance with this Agreement.
2. Representations and Warranties
a. Mutual. Each party represents and warrants to the other party that: (i) it has full right and power to enter into this Agreement and to perform fully all of its obligations hereunder; and (ii) there are no other agreements, written or oral, with any third party in conflict herewith.
b. Content Creator represents, warrants and covenants to Sage that: (i) it is the sole and exclusive owner of the Content, free and clear of all liens or encumbrances other than the Pre-Existing Licenses, or otherwise has the right to grant the rights to Sage hereunder; (ii) it is not necessary for Sage to obtain the consent or permission of, or to pay any amounts to, any third party in order to fully enjoy the rights granted under this Agreement; (iii) there are no claims, litigation or other proceedings pending or threatened which would adversely affect any Content or rights granted hereunder; (iv) the use, display and exploitation of the Content as contemplated hereunder will not violate any applicable laws, including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, or invasion of privacy or publicity rights, moral or otherwise; and (v) the Content is, and will at all times be, in compliance with the Platform Terms, including all content guidelines, policies and requirements set forth therein. Content Creator further represents, warrants and agrees that Content Creator has obtained any and all necessary consents, approvals, licenses, releases and rights from any third parties who appear in, or may otherwise have rights in the Content and that Content Creator has fully paid any third parties who may be entitled to a royalty or other fee (including public performance organizations) in connection with any of the licensed uses or other rights and privileges granted to Sage under this Agreement.
a. Fees.Subscriptions for end-users to access Content Creator's Subscription Content shall be offered to end-users on an annual, semi-annual or monthly subscription offering, at the end-users' election. Content Creator shall determine the annual subscription fee for end-users to access Content Creator's Subscription Content on the Platform and the prices for its A-La-Carte Content; such Content price lists shall be submitted by Content Creator to Sage from time to time via the Content Creator Page, and Sage shall have ten (10) business days to publish such prices on the Platform. Content Creator acknowledges and agrees that Sage shall use the annual subscription fee for Subscription Content set by Content Creator to determine the applicable semi-annual and monthly subscription fees to charge end-users for such subscription to Subscription Content. Subsections (i)-(ii) below describe the different fee rates that apply to the Subscription Content channel and the types of A-La-Carte Content that you can choose to Submit. As consideration for your license of your Content to Sage, Sage agrees to pay you the fee rate (“Fees”) set forth below next to the type of Content you have chosen to Submit.
i. Subcription Content. Sage shall pay Content Creator, at a frequency that shall be not less than monthly, a royalty fee of 75% of total subscription revenues received by Sage for 4 distribution of Content Creator's Subscription Content channel on the Platform, after deducting: (i) bona-fide credit or adjustment for returns or chargebacks actually made or amounts directly attributable to fraudulent or invalid transactions; and (ii) mark-down allowances and rebates given that actually relate to Subscription Content.
ii. A-La-Carte Content: Sage shall pay Content Creator a royalty for each unique purchase of A- La-Carte Content for which Sage receives payment from an end-user of the Platform. The royalty rate will be 75% of the end-user purchase price for such A-La-Carte Content, after deducting: (i) bona-fide credit or adjustment for returns or chargebacks actually made or amounts directly attributable to fraudulent or invalid transactions; and (ii) mark-down allowances and rebates given that actually relate to A-La-Carte Content.
i. All Fees and accompanying statements will be issued sixty (60) days after the last day of the month in which the Fees accrued. All payments due will be made payable to Content Creator in U.S. dollars and sent via wire transfer or other electronic payment format offered by Sage using the account information provided by Content Creator. Payments are automatic and do not need to be requested
ii. Sage may at any time with written notice to Content Creator set out a reasonable minimum payout rate factoring in applicable payment processing costs (“Minimum Payout Rate”) per accounting period for electronic payments. If during an accounting period, Content Creator hasn't accumulated such Minimum Payout Rate in Fees, as applicable, Content Creator's compensation will be brought forward into the next accounting period. If Content Creator cancels Content Creator's account, prior to accrued earnings in Content Creator's account totaling such Minimum Payout Rate, such Fees will be forfeited by Content Creator.
iii. If Content Creator's account is terminated for a breach of the terms of this Agreement or the Platform Terms, in addition to its other rights at law or in equity, Sage shall have the right to retain any Fees and other compensation otherwise payable to Content Creator or $500.00, whichever is greater hereunder, as liquidated damages.
c. Refunds; Chargebacks: If Content Creator is credited with an A-La-Carte Content purchase and Sage thereafter issues a refund to the end-user(s) that purchased such A-La-Carte Content, or if any Content was a result of an unlawful activity, Sage shall have the right to deduct Fees credited to Content Creator's account and allocated to such refunded subscriptions and/or purchases. Credit card chargebacks will be treated in the same manner as refunded subscriptions and/or purchases. If Sage makes an overpayment of Fees or other compensation to Content Creator for any reason, Sage shall have the right to deduct the amount of such overpayment from Content Creator accrued Fees or to demand the immediate repayment of such overpaid Fees or other compensation.
d. Taxes. Sage shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as Sage is required to deduct and withhold under the Internal Revenue Code of 1986, as amended (the "Code"), or any tax law, with respect to the making of such payment. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to Content Creator. If Content Creator is a “United States person,” as said term is defined in Section 7701(a)(30) of the Code (a "U.S. Person"), a signed and completed Internal Revenue Service ("IRS") Form W-9 must be submitted to Sage for Sage to make payments to Content Creator. Content Creator will receive an email containing instructions on how to download and submit this IRS form to Sage. An IRS Form W-9 is used to certify under penalty of perjury that Content Creator's social security number is correct and that Content Creator is not subject to backup withholding taxes. Foreign 5 persons might be subject to U.S. income tax on income they receive from U.S. sources. If Content Creator is not a U.S. Person, an applicable signed and completed IRS Form W-8 must be submitted to Sage in order for Content Creator to claim a reduced rate of, or exemption from, withholding as a resident of a foreign country with which the United States has an income tax treaty. Content Creator will receive an email containing instructions on how to download and submit this IRS form to Sage. All payments due under this Agreement are exclusive of taxes, duties, levies, tariffs and other governmental charges (including, without limitation, value-added taxes) (collectively, “Taxes”). Content Creator will be responsible for payment of all Taxes and any related interest and penalties resulting from any payments made hereunder.
4. Term and Termination
a. Term. This Agreement shall commence on the Effective Date and will remain in effect until this Agreement is terminated by either party in accordance with the terms hereunder (the “Term”).
b. Termination for Breach. Each party will have the right to terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching party; provided, however, that if the breaching party has commenced and diligently continued actions to cure such breach within such thirty (30) day period, the cure period shall be extended to ninety (90) days, so long as the breaching party is making diligent efforts to cure such breach. Further, Sage will have the right to immediately terminate this Agreement with written notice to Content Creator if Content Creator breaches Section 1(d) or Section 1(e) of this Agreement
c. Termination for Convenience. Either party will have the right to terminate this Agreement for any reason, with or without cause, with thirty (30) days prior written notice to the other party.
d. Effect of Termination. Sage's right to use the Content provided under this Agreement shall continue during the Term and for a period of one (1) year thereafter (the “Transition Period”); provided that, during the Transition Period, Sage's right to display and distribute the Content shall be limited solely to those pages and platforms on the Platform on which such Content were distributed and transmitted as of the termination of the Agreement.
e. Survival. The rights, obligations, and limitations under this Agreement that the parties have expressly agreed shall survive termination of this Agreement or that, by their nature, would continue beyond the termination of this Agreement, shall survive the termination of this Agreement for any reason. Without limiting the generality of the foregoing, the parties intend that the following Sections survive the termination of this Agreement: Sections 1 (except that with respect to 1(a), only until the end of the applicable Transition Period), 2, 3 (until the end of the applicable Transition Period), 4(d), 4(e), 5, 6, 7, 8 and 9 shall survive termination of this Agreement.
Content Creator shall indemnify and hold Sage, its affiliates, successors and assigns, and their officers, directors, agents, representatives, employees (the “Indemnified Parties”) harmless from and against any and all third party claims, proceedings, actions, judgments, penalties, fines, interest, damages, costs, expenses and other liabilities and losses (whether under a theory of strict liability, or otherwise) of whatsoever kind or nature (each, a “Claim”) incurred by, or threatened, imposed or filed against, any Indemnified Party to the extent caused by or arising out of or in connection with (i) the Content or the use thereof; (ii) a breach of any of Content Creator’s representations, warranties or obligations in this Agreement; or (iii) the failure to deduct and withhold from any payment payable under the this Agreement, any amounts required or permitted to be deducted and withheld from the compensation of any employee under the provisions of federal and state income tax acts, the federal Social Security Act, or any state unemployment insurance tax act, and/or any amendments thereof and/or any other applicable statues heretofore or hereafter enacted 6 requiring the withholding of any amount from the compensation of an employee. Content Creator shall not settle, compromise or consent to the entry of any judgment or otherwise seek to terminate any pending or threatened Claim in respect of which the Indemnified Party is entitled to indemnification hereunder (whether or not the Indemnified Party is a party thereto), without the prior written consent of the Indemnified Party.
6. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SAGE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF SAGE FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF: (I) THE AMOUNTS PAID BY SAGE TO CONTENT CREATOR DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING; OR (II) TWO THOUSAND UNITED STATES DOLLARS ($2,000.00 USD). EACH PARTY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE TERMS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT
7. No Equitable Relief
The rights and remedies of Content Creator in the event of any breach by Sage of this Agreement or any of Sage's obligations hereunder shall be limited to Content Creator's right to recover damages, if any, and Content Creator hereby waives any right or remedy in equity, including, without limitation, any right to seek injunctive or other equitable relief with respect to any breach of Sage's obligations hereunder and/or to enjoin or restrain or otherwise impair in any manner the distribution, exhibition or other exploitation of the Content or any parts or elements thereof, or the use, publication or dissemination of any advertising in connection therewith. SUBSTANTIALLY DIFFERENT
a. Assignment. Content Creator shall not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any or 7 its rights or obligations under this Agreement without Sage's prior written consent. Sage may freely assign this Agreement or any of its rights or obligations under this Agreement without the consent of Content Creator. Any purported assignment, sale, transfer, delegation or other disposition, except as permitted herein, will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assignors.
b. No Warranty. All Confidential Information is provided “AS IS,” without any warranty of any kind
c. Severability. If any provision of this Agreement, or the application thereof to any person, place or circumstance, will be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision will be enforced to the maximum extent possible so as to effect the intent of the parties, or, if incapable of such enforcement, will be deemed to be deleted from this Agreement, and the remainder of this Agreement and such provisions as applied to other persons, places and circumstances will remain in full force and effect
d. Waivers. The waiver by either party of a breach of or a default under any provision of this Agreement, will not be effective unless in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy
e Further Assurances. Content Creator shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as Sage may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby
f. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles that would require the application of the law of another jurisdiction. The parties agree to work cooperatively and in good faith to resolve any disputes which may arise. If the parties are unable to resolve any disputes after good faith discussions, Content Creator agrees that, upon Sage's request, all disputes arising hereunder will be adjudicated solely in the state and federal courts having jurisdiction over disputes arising in New York County, New York, and Content Creator hereby agrees to consent to the personal jurisdiction of such courts.
g. Notices. Any notices required or permitted hereunder will be given to the appropriate party in writing and will be delivered by personal delivery, electronic mail, or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, three days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices will be sent to the addresses or electronic mail information set forth at the end of this Agreement or such other address or electronic mail information as either party may specify in writing
h. Connectivity. You are responsible for obtaining and maintaining all equipment, network connections, software, and all internet service provider, mobile service, and other services needed for the creation and Submission of Content hereunder and for your compliance with this Agreement, and you will be responsible for all charges related to them.rk, and Content Creator hereby agrees to consent to the personal jurisdiction of such courts.
i. Independent Contractors. The parties do not intend to create and nothing in this Agreement shall be interpreted to create a joint venture, partnership, franchise, or principal and agent relationship. The relationship of the parties is that of independent contractors. Neither party is an agent, representative or partner of the other party
j. Waiver and Modification. This Agreement may not be waived, modified or amended unless mutually agreed upon in writing by both parties.
K. Headings. Headings used in this Agreement are for reference purposes only and will not be deemed a part of this Agreement
l. Entire Agreement. This Agreement, along with the Platform Terms, constitute the entire agreement of the parties hereto with respect to its subject matter, and supersede all previous, contemporaneous and inconsistent agreements, negotiations, representations, understandings and promises between the parties, written or oral, regarding the subject matter hereunder.
CONTENT CREATOR ACKNOWLEDGES THAT CONTENT CREATOR HAS THE RIGHT TO CONSULT WITH INDEPENDENT LEGAL COUNSEL PRIOR TO SIGNING THIS AGREEMENT AND HAVE HAD A REASONABLE OPPORTUNITY TO DO SO, AND THAT CONTENT CREATOR EITHER HAS CONSULTED, OR ON CONTENT CREATOR'S OWN VOLITION CHOSEN NOT TO CONSULT, WITH SUCH COUNSEL. CONTENT CREATOR FURTHER ACKNOWLEDGES THAT CONTENT CREATOR HAS READ THIS AGREEMENT AND THE PLATFORM TERMS CAREFULLY AND UNDERSTANDS AND ACCEPTS THE OBLIGATIONS WHICH IT IMPOSES UPON CONTENT CREATOR WITHOUT RESERVATION. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO CONTENT CREATOR TO INDUCE CONTENT CREATOR TO SIGN THIS AGREEMENT. CONTENT CREATOR SIGNS THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE, WITH THE UNDERSTANDING THAT SAGE WILL RETAIN ONE COUNTERPART AND THE OTHER COUNTERPART WILL BE RETAINED BY CONTENT CREATOR.
Forms of Release
The undersigned hereby irrevocably consents to and authorizes the use by and Sage Media Network, Inc., a Delaware corporation (“Sage”), a worldwide exclusive, transferable, sublicenseable (through multiple tiers) license to use the undersigned's name, image, photo, likeness and voice in as follows: (i) to photograph, publish, re-publish, adapt, exhibit, perform, reproduce, edit, modify, make derivative works, distribute, display, or otherwise use or reuse on the Sage platform; and (ii) to photograph, publish, re-publish, adapt, exhibit, perform, reproduce, edit, modify, make derivative works, distribute, display, or otherwise use or reuse in connection with the advertising and marketing of such content or the Sage platform.Please indicate your agreement to the foregoing by signing below.
If you are under eighteen (18) years of age, your parent or guardian must sign below.I represent that I am a parent/guardian of the minor who has signed the above release and that in that capacity Sage has my consent and authorization to use the name, voice, and/or likeness as described above.