WHEREAS, AJPR owns and operates the Anniejenningspr.com/jenningswire and Jenningswire.com online forums (together, the “Website”); and
WHEREAS, the Website is home to written, video and/or audio blog posts from numerous bloggers on a variety of subjects all pertaining to success, and provides these bloggers with exposure to a large audience and greater access to potential business opportunities; and
WHEREAS, Contributor is desirous of creating new blog content to be submitted to AJPR for publication on the Website, and of gaining access to those potential business opportunities that may arise as a result of such publication;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, AJPR and you agree as follows:
1. Definitions.
a. An “affiliate” means any person or entity (i) which controls or is controlled by, directly or indirectly through one or more intermediaries, persons or companies, or is under common control with, AJPR, or (ii) which is otherwise contractually associated with AJPR through license or other agreement.
b. An “affiliated site” means any website owned or operated by an affiliate.
c. The “Restricted Period” means that 48-hour period of time starting when the Work first goes live on the Website.
d. An “original blog post” means a written, audio or video blog posting authored by you that has not been published or otherwise distributed to any other person or party as of the date on which it is first posted by AJPR on the Website.
2. Contributions. You will be submitting to AJPR, on or after the Effective Date, one or more original blog posts within your subject of expertise, whether in written, video or other format (each a “Work”; collectively, the “Works”) for posting on the Website.
3. Licenses.
a. Grant of License. Subject to the terms and conditions of this Agreement, and in consideration of AJPR publishing your content on the Website, for each Work accepted by AJPR for posting on the Website, you grant AJPR a perpetual, irrevocable, worldwide, non-exclusive (subject to the Restricted Period set forth in Section 4), royalty-free, transferable and fully sub-licensable right and license to reproduce, modify, adapt, distribute, make derivative works of, publish, translate, perform, display and/or disclose such Work (and derivative works thereof) in any form, media or technology, now known or later developed. For avoidance of doubt, you grant AJPR the right to post each Work on the Website and any affiliated sites, whether in the English language or translated into a foreign language, for distribution through all media and channels of communication, including but not limited to the internet and wireless communication systems, and for access via any platform or device, including but not limited to print media, electronic downloads, computer web browsers, tablet computers, hand-held wireless or mobile devices, and through any other media or platform, whether now known or hereafter created. The foregoing license grant also provides AJPR with the right to use the Work as it appears on the Website (or any portion thereof) in connection with advertising and promoting the Website, as well as the right to excerpt and create teasers and summaries of the Work for purposes of promoting you, the Work or the Website.
b. Right of First Publication. By submitting a Work to AJPR for inclusion on the Website, you thereby grant to AJPR the right of first publication for such Work. Thereafter, the Work may not be published anywhere else, including on your website, until after it has first been published by AJPR on the Website, and will be subject to the Restricted Period, as discussed in Section 4(b) below.
c. Editorial Changes. You acknowledge and agree that AJPR has the right to make minor corrections and/or alterations to any Work you submit in order to adapt such Work to fit within the Website, including, but not limited to, changes in formatting, punctuation, grammatical changes, spellchecking, adding subheadings, and modifying the title of such Work. AJPR will use reasonable business efforts to consult with you before making any changes that AJPR, in its reasonable judgment, believes are substantive in nature.
d. Graphics and Photographs. You acknowledge and agree that AJPR has the right to add graphics and/or photos within or in association with or to advertise or promote the Works, including in connection with a listing of such Works, whether on the Website or an affiliated site. You understand that any photographs, video, audio or graphics which you may include within a Work must be owned by you, or if not owned by you, that you must provide AJPR with a copy of a written license or permission to use the same as part of the Work. Notwithstanding the foregoing, if you include graphics, audio, video or photographs as part of any Work, AJPR reserves the right to remove such graphics, audio, video or photographs at its sole discretion, or to not publish the Work on the Website.
e. Sublicense. You grant AJPR the non-exclusive rights to republish, store, syndicate, and/or distribute reprints of all or any portion of each Work in any language and in any country. AJPR may sublicense or otherwise grant affiliates or other third parties the right to distribute each Work or any part thereof, individually or in conjunction with other works, as part of AJPR’s efforts to advertise, promote, distribute and/or perform the Website and its content.
f. Attribution. You hereby grant AJPR and its affiliates the perpetual, non-exclusive, worldwide, royalty-free and transferable right to use your name, likeness and biographical information in a fair and dignified manner and to publish information about you in connection with the advertising and promotion of the Website. AJPR will use reasonable business efforts to include a by-line attributing you as the author on all Works that are published on the Website. The exact format and placement of the attribution is subject to AJPR’s discretion. You understand and acknowledge that AJPR cannot always control the manner in which an affiliate or third party may present, perform, distribute or display a Work, or portions or excerpts thereof, and AJPR cannot guarantee that such affiliates or third parties will include the by-line or other attribution associated with the Work as provided by AJPR.
g. Affiliates. AJPR may exercise any of the rights granted herein through itself or through any of its affiliates, successors, transferees, licensees, distributors, or other parties, commercial or nonprofit. AJPR will use reasonable business efforts to request its affiliates to distribute, display, perform and/or reproduce each Work in form and content consistent with the Work’s publication on the Website; however, you hereby acknowledge and agree that AJPR has no control over and will not be liable for any alteration of the Work by affiliated sites or other third-party websites.
h. No Restrictions on Applicable Law. Nothing in this Agreement shall be construed as reducing, limiting, or otherwise restricting any rights or limitations on the exclusive rights provided by applicable law, including those arising under the fair use or first sale doctrines.
4. Copyright; Limited Exclusivity.
a. Copyright. Without limiting any other statement of AJPR’s rights hereunder, all copyright or other rights in the Works not specifically licensed to AJPR hereunder are reserved to you. AJPR intends that this Agreement shall cover all Works published on the Website after the Effective Date of this Agreement.
b. Limited Exclusivity. So that the Works may be fully and properly indexed by content aggregators and search engines, thereby maximizing the exposure to you for your contributions, you agree and acknowledge that any Work submitted to AJPR for inclusion in the Website (i) must be original and otherwise unpublished at the time of its posting to the Website, and (ii) may not be reposted by you, nor may you grant any other person or entity the right to repost such Work, during the Restricted Period. Upon conclusion of the Restricted Period for a Work, you may repost the Work on your own blog, your website or on third-party websites, provided that any such reposting includes a link to the original posting on the Website and specifically states that it is a repost of the Work from the Website.
5. Contributor Guidelines, Conditions and Obligations.
a. Guidelines. You agree to abide by the terms of AJPR’s guidelines for content contributions provided to you, as amended from time to time, which are incorporated herein by this reference (the “Contributor Guidelines”). You also agree to periodically check the Contributor Guidelines for any amendments or revisions. PLEASE NOTE: In the event you fail to follow any of the Contributor Guidelines, particularly those pertaining to copyright infringement, AJPR shall have the right, in its sole discretion, to terminate this Agreement and/or remove any non-compliant Works from the Website, all without further notice to you.
b. Refusal to Publish; Right to Remove. Notwithstanding anything to the contrary contained in this Agreement, you agree and acknowledge that AJPR reserves the right, in its sole discretion, to refuse to accept, post, display, publish, distribute or transmit any Work, and may remove any Work from the Website at any time for any reason without notice to you.
c. Modification of Works. AJPR, in its sole discretion, may publish, withdraw, postpone or make alterations to any content you provide including, but not limited to, formatting, grammatical changes, punctuation, spellchecking, adding subheadings, and modifying the title of the Work. You hereby waive any right that you may have to inspect or approve the finished product or products incorporating the Work or related to its use and promotion; however, in the event you are concerned that any changes or edits made by AJPR require further modification, or that the edited Work as published on the Website is inaccurate, contains errors, misstatements or misrepresentations, or otherwise requires revisions pursuant to any of the terms or conditions of this Agreement, it your obligation to immediately advise AJPR of the same. AJPR will work with you to address any such problems, concerns or corrections after receiving your notification.
d. Third Party Content and Materials. You agree and represent that you will be solely responsible for the acquisition of any and all third party clearances, permissions and licenses, at your expense, that are necessary in connection with the exercise by AJPR or its affiliates of the rights set forth in Section 3, including, without limitation, with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials, and for the payment of any and all applicable guild fees and for any and all residuals, payments, fees or royalties, if any, payable under any collective bargaining agreement or otherwise. If you do not obtain all such clearances, permissions and/or licenses, you shall not include such content in the Work.
e. You Are a Content Provider. You understand that you are responsible for defending against any legal claims arising from the content that you provide pursuant to this Agreement, and that AJPR intends to treat your Works as covered by Section 230 of the Communications Decency Act’s safe harbor.
f. Social Media. You agree and acknowledge that, pursuant to the terms of this Agreement, you shall use reasonable business efforts to share the link to each of your Works posted on the Website directly with all of your social media communities (e.g., Facebook, Twitter, LinkedIn, etc.) promptly after publication of each Work on the Website. For the avoidance of doubt, the sharing of links under this Section does not constitute a breach of the limited exclusivity obligations of Section 4(b).
6. Payments to Contributor.
a. No Payments for Website Content. As outlined hereinabove, AJPR has the right to reproduce, publish, distribute, display, perform and disclose the Works itself on the Website and through AJPR’s affiliates on a royalty-free basis. This may include AJPR advertisements or promotional materials, such as e-mail newsletters containing portions of a Work, or repackaging or syndication of content, such as through rich site summary (RSS) feeds and other similar vehicles, products or services. You acknowledge and agree that you will receive no payment for AJPR’s exercise of such rights during the term of this Agreement, that you are not entering into this Agreement with the expectation of any payment, and you are entering into this Agreement solely in exchange for the benefits set forth hereinabove. For the avoidance of doubt, where a Work is subject to any statutory royalty provisions under applicable law, you waive your right to collect any such statutory royalties resulting from AJPR’s activities, whether through the Website or otherwise.
b. Licensing of Specific Works. In the event AJPR receives a request from a person or entity (other than an affiliate) to reproduce, publish, distribute, display and/or perform one or more of your specific Works (a “Prospective Licensee”), including reprint rights for one or more specific Works or a potential book publishing contract for collecting some or all of your Works, AJPR will promptly notify you of the same. You will have the option of negotiating directly with such Prospective Licensee, or having AJPR negotiate on your behalf. For each deal successfully negotiated with a Prospective Licensee concerning one or more of the Works (each a “Contract”), AJPR shall receive a finder’s fee of twenty percent (20%) of all royalties or other financial proceeds attributable to the Works that are owed to you pursuant to each Contract. In the event you request AJPR negotiate a Contract on your behalf, AJPR’s attorney’s fees incurred in connection with such negotiation will be recouped in full from that Contract’s proceeds first; once fully recouped, the royalties and other financial proceeds will then be split 80/20 as previously discussed.
c. Printed Publications Created by AJPR. As of the Effective Date, AJPR has no intentions or plans to create or publish books comprising printed collections of the contributors’ blog posts, whether entirely Works created by you alone or also containing the works of other contributors. However, in the event that AJPR in the future does decide to create and produce such books, AJPR will first negotiate with you in good faith concerning what fees and/or royalties would be paid to you for inclusion of your Work(s) in any such project(s). For avoidance of doubt, AJPR will not include your Works in any printed books that AJPR produces without first reaching an agreement with you concerning payment.
d. Taxes. In the event that you do receive any payments relating to this Agreement, you will be solely responsible for all taxes, duties and/or other governmental assessments that may be due as a result.
7. Representations and Warranties; Conflict of Interest.
a. Non-Infringement. You represent and warrant that, as of the date any Work is submitted to AJPR: you are the sole author of the Work; you own or control the rights and/or permissions necessary to make the grant of rights and license herein; the Work will be original and not previously published in any manner or form; and the rights granted herein, and the use thereof by AJPR, do not and will not infringe or otherwise violate the rights of any third party, including without limitation any intellectual property rights, rights of publicity, rights of privacy, trade secrets, rights to payment of royalties, or any applicable law or regulation not specifically identified in this section, nor will result in any tort, injury, damage or harm to any third party. You further represent and warrant that the Work will not knowingly contain any untrue statements or material that is deceptive, fraudulent or intentionally misleading, and that all statements in the Work which are asserted as facts are true and/or based upon reasonable research for accuracy.
b. No Pending Claims. You represent and warrant that, as of the date any Work is submitted to AJPR, you are not aware of any pending or threatened claims, suits, actions or charges pertaining to the Work or the contents thereof, including without limitation any claims or allegations that any or all of the Work infringes, violates or misappropriates the intellectual property rights of any third party. You agree that you will notify AJPR immediately if you become aware of any such actual or potential claims, suits, actions, allegations or charges. You agree to cooperate in the defense of any legal action brought against AJPR arising from the publication of your Work(s), and in furtherance of such cooperation, you agree to retain all notes, drafts and copies relating to the Work for three (3) years from acceptance of that Work by AJPR.
c. No Conflicts. You agree and represent that you will disclose to AJPR in writing any actual or potential conflict of interest, including but not limited to any financial interest in any product, entity, firm, or commercial venture relating to the subject of the Work.
d. Additional Representations and Warranties. You represent and warrant as follows: (i) that you have full authority to enter into this Agreement; (ii) that you own or control the rights and/or permissions necessary to make the grant of rights and license herein; (iii) that your performance pursuant to this Agreement will not violate any agreement or obligation between you and a third party; (iv) that you will not use your association with AJPR to advertise or otherwise promote or identify yourself in any speaking engagements or public appearances without the prior written consent of AJPR, except linking your Work to the Website; and (v) you will use due care in the performance of your obligations under this Agreement, including payment of taxes (if applicable) and will create each Work in conformance with applicable legal requirements and best accepted industry standards and practices.
e. Disclaimer Of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, AJPR AND ITS AFFILIATES MAKE NO WARRANTIES WITH RESPECT TO THE WEBSITE OR THAT THE WEBSITE OR AFFILATE WEBSITES WILL RUN WITHOUT INTERRUPTION. AJPR AND ITS AFFILIATES MAKE AND YOU RECEIVE NO OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND AJPR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL AJPR BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WEBSITE OR WITH THE DELAY OR INABILITY TO USE THE WEBSITE OR ANY AFFILIATED SITE, OR OTHERWISE ARISING OUT OF THE UTILIZATION OF THE WEBSITE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF AJPR HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
8. Limitation of Liability; Indemnification.
a. Indemnification. You agree, at your own expense, that you shall indemnify, defend and hold harmless AJPR, its affiliates and each of their respective officers, directors, employees, representatives, licensees and agents from and against and in respect of any and all claims, liabilities, allegations, suits, actions, investigations, judgments, deficiencies, settlements, inquiries, demands or other proceedings brought against AJPR, its affiliates or any of their respective officers, directors, employees, representatives, licensees or agents, including without limitation reasonable legal fees, costs and expenses, relating to, based upon, incident to, arising from, or in connection with (a) your breach of any of your representations or warranties herein; (b) any claim or allegation that your Work infringes in any manner any intellectual property right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party. Notwithstanding the foregoing, AJPR agrees that your indemnification obligation will be limited in the event that a particular claim, action or suit is brought as a direct result of modifications made to a Work by an affiliate as to content or manner of a Work’s presentation on an affiliated web site.
b. Limitation of Liability. EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, AND EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL AJPR OR YOU BE LIABLE TO THE OTHER PARTY ON ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF THE WORK, EVEN IF YOU OR AJPR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF A PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. IN NO EVENT WILL AJPR’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED $100.00.
9. Relationship of the Parties. The parties acknowledge and agree that they are dealing with each other as independent contractors, and that you are not an employee or agent of AJPR or any of its subsidiaries or affiliates. Neither the Agreement nor any terms or conditions contained herein may be construed as creating or constituting an employer-employee relationship, a partnership, a joint venture, a franchise, or an agency between you and AJPR. Neither you nor AJPR may bind the other in contracts with third parties or make promises or representations on behalf of the other party without a signed written consent, and employees and agents of one party are not for any purpose employees or agents of the other. You have the right to control the means, manner and method by which you create each Work and you assume all responsibility for the quality, scope and accuracy of each Work. Neither party owes the other party or any third party any compensation for performing the actions contemplated by the Agreement, except as expressly set forth in the Agreement.
10. Term and Termination. This Agreement shall remain in effect from the Effective Date until terminated by either party upon written notice. In the event that this Agreement is terminated for any reason, all provisions that by their nature should survive termination shall survive, including any grant of rights or license.
11. Force Majure. Neither party shall incur liability to the other for any failure or delay in fulfilling its obligations under this Agreement for causes beyond its reasonable control, including, but without limiting the generality of the foregoing, labor or industrial disturbances, acts of God, floods, lightning, utility or communication failures, earthquakes, acts of the public enemy, riots, insurrection, embargoes, blockages, actions, restrictions, regulations or orders of any government, agency or subdivision thereof.
12. Superseding Agreement; Modification; Severability. This Agreement contains our entire understanding and supersedes all other agreements, understandings and negotiations (whether oral or written) between you and AJPR. This Agreement may not be modified, waived, assigned or discharged orally; any modifications, waiver or discharge must be in writing and signed by you and by AJPR. If any provision of this Agreement is held to be illegal, invalid, void or unenforceable, it will be severed from this Agreement and will not affect, impair, or invalidate any other provision, and it will be replaced by a provision which comes closest to such severed provision in language and intent without being illegal, invalid, void or unenforceable.
13. No General Waiver. Waiver of any one default by a party will not waive subsequent defaults of the same or different kind, and no failure or delay of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.
14. Notices. All notices, requests and other communications called for by the Agreement shall be deemed to have been given immediately if made by facsimile or electronic mail, if to a party at the fax number or e-mail address set out below that party’s signature. Notice by any other means will be deemed made when actually received by the party to which notice is provided.
15. Successors; Assignment. The Agreement will bind and inure to the benefit of each party’s heirs, permitted successors, legal representatives and assigns. Neither party may assign the Agreement, in whole or in part, without the other party’s written consent; provided, however, that either party may assign the Agreement without consent in connection with any merger, consolidation, or any sale of all or part of its assets related to this Agreement. Any attempt to assign or transfer the Agreement other than in accordance with this provision will be null and void.
16. Governing Law; Jurisdiction. This Agreement shall be construed and interpreted in accordance with the laws of the State of New Jersey, without giving effect to the choice-of-law rules of that State. You agree and acknowledge that the state and federal courts of New Jersey shall be the exclusive forum for resolution of disputes relating to or arising out of this Agreement. In the absence of federal jurisdiction, the state court located in Mercer County, New Jersey shall be the exclusive forum for resolution of disputes relating to or arising out of this Agreement. You consent to personal and subject matter jurisdiction of the federal and state courts of New Jersey and agree to accept personal service of process relating to any such disputes. Neither party shall initiate or seek to transfer in any way an action relating to or arising out of this Agreement to any other forum. This Agreement supersedes and amends any related voucher or other agreement, instrument or document between the parties.
17. Counterparts. This Agreement may be executed in counterparts and via facsimile and other electronic transmission with the same effect as if executed on one document and as if all signatures were originals.