Freelancer Terms and Conditions
End-User Agreement for Freelancers
Last Updated January 16, 2015
This End-User Agreement for Freelance-Customers (this “Agreement”) is by and between Ebyline, Inc., a Delaware corporation (“Ebyline”), and you (“Customer”) and is made as of the date this Agreement is accepted by you by clicking on the “I HAVE READ AND ACCEPTED” button (the “Effective Date”).
BY CHECKING OFF THE “I AGREE TO EBYLINE’S END-USER AGREEMENT FOR FREELANCE-CUSTOMERS” WHEN YOU REGISTERED AS A CUSTOMER WITH EBYLINE AND/OR BY SUBMITTING WORKS ON EBYLINE’S ONLINE PLATFORM AND WEB SITE, CUSTOMER HEREBY EXPRESSLY AGREES AND CONSENTS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS MODIFIED FROM TIME TO TIME BY EBYLINE, AND ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT CUSTOMER IS AT LEAST EIGHTEEN (18) YEARS OF AGE.
FURTHERMORE, BY CLICKING ON “START PROJECT” FOR EACH PROJECT, CUSTOMER CONFIRMS THAT CUSTOMER AGREES AND CONSENTS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS MODIFIED FROM TIME TO TIME BY EBYLINE.
WHEREAS, Ebyline is a software company providing an online platform (the “Ebyline Platform”) to allow Customer to sell news content to various outlets. NOW, THEREFORE, in consideration of the recitals, promises and mutual covenants in this Agreement, the parties agree as follows:
1.1. “Freelancer Agreement” shall mean the form of agreement of a Publisher setting forth certain terms and conditions for each project between Customer and a Publisher.
1.2. “IP Rights” shall mean all forms of intellectual property rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, including, but not limited to, all right, title and interest arising under United States or foreign common or statutory law in and to all copyrights, copyright registrations, design registrations and applications, Moral Rights, other literary property or authors’ rights, whether or not protected by copyright or as a mask work.
1.3. “Moral Rights” shall mean any rights to claim authorship of any Work, to object to or prevent any modification of any Work, to withdraw from circulation or control the publication or distribution of any Work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”
1.4. “Publisher” shall mean any publisher that is party to a Publisher Agreement with Ebyline.
1.5. “Related Parties” shall mean any owner, parent, partner, affiliate, subsidiary, supplier, subcontractor, shareholder, director, officer, hired or leased employee or worker, agent, representative or permitted assignee or successor of Ebyline or Customer, as the case may be and as context requires.
1.6. “Taxes” shall mean any sales, value added, use and/or other applicable taxes, as well as any duties or other charges imposed on or related to any payments provided under this Agreement.
1.7. “Work” or “Works” shall mean any deliverables, technology, designs, articles, written expressions, materials, content, graphics, data, information, images, photographs, art, illustrations, animations, video, audio, or audio/visual work, music, text, and/or any works of authorship that Customer (or Customer’s authorized employees, subcontractors or agents) may conceive of, create or develop prior to or in the course of performing any Freelancer Agreement for a Publisher, whether or not eligible for patent, copyright, trademark, trade secret, or other legal protection.
2. FREELANCER AGREEMENT WITH PUBLISHER. Prior to Customer starting any new project, Customer shall acknowledge, accept and be bound by the terms of a Freelancer Agreement with Publisher negotiated and agreed upon between Publisher and Customer. Customer shall, in its sole discretion, decide to enter into any such Freelancer Agreement with any Publishers. Customer agrees that any distribution rights of Publisher for any Works shall be governed by the terms and conditions of the applicable Freelancer Agreement for each project.
3. PAYMENT; TAXES.
3.1. Sole Compensation. Customer’s sole compensation shall consist of the purchase price mutually agreed upon between Publisher and Customer for each project (the “Consideration”). CUSTOMER HAS NO EXPECTATION AND ACKNOWLEDGES THAT CUSTOMER HAS RECEIVED NO ASSURANCES FROM EBYLINE THAT (A) CUSTOMER’S BUSINESS RELATIONSHIP WITH EBYLINE OR ANY PUBLISHER WILL CONTINUE FOR ANY SPECIFIED TIME, (B) CUSTOMER WILL OBTAIN ANY ANTICIPATED AMOUNTS OF PROFITS IN CONNECTION WITH THIS AGREEMENT, OR (C) CUSTOMER WILL RECOUP ANY EXPENDITURES MADE IN FULFILLMENT OF CUSTOMER’S OBLIGATIONS UNDER THIS AGREEMENT OR ANY FREELANCER AGREEMENT WITH A PUBLISHER. EBYLINE SHALL INCUR NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES OR EXPENSES OF ANY KIND SUFFERED OR INCURRED BY CUSTOMER ARISING FROM OR INCIDENT TO ANY TERMINATION OF THIS AGREEMENT BY EBYLINE WHETHER OR NOT EBYLINE IS AWARE OF SUCH DAMAGES, LOSSES OR EXPENSES.
3.2. Payment Terms; Transfer of Ownership. The Consideration that is due and owing to Customer shall be paid to Customer by Ebyline within 6 months of approval by Publisher of the Work. Payments shall be made in U.S. Dollars. Upon the approval by Publisher of the Work (i.e. when the Publisher clicks on “approve and pay”), Customer hereby agrees that all ownership of the Work including, but not limited to, all the IP Rights of the Work, shall immediately be transferred to Ebyline.
3.3. Exclusions; Taxes. All amounts payable to Customer by Ebyline hereunder are exclusive of any of Ebyline’s fees and any Taxes. Customer shall pay when due, and shall defend, indemnify and hold Ebyline and its Related Parties harmless from and against any and all Taxes and shall remain liable for payment of all such Taxes. In the event of an assessment against Ebyline for Taxes by any taxing authority or jurisdiction, Customer agrees to reimburse Ebyline within thirty (30) days of the date of invoice from Ebyline issued in respect thereof for all such Taxes, as well as any applicable interest and/or penalties found to be due and payable.
4. EXERCISE OF RIGHTS; NO GUARANTEE. Ebyline’s exercise of any of the rights granted hereunder shall be at Ebyline’s sole and absolute discretion. Customer acknowledges and understands that there is no guarantee that Customer’s Works will be purchased by a Publisher.
5. TERM AND TERMINATION; SURVIVAL.
5.1. Term. This Agreement shall be effective on the Effective Date and shall continue in force and effect until terminated by operation of law or by the acts of either of the parties in accordance with the terms of this Agreement.
5.2. Termination. A party shall have the right to terminate this Agreement in any of the following events: (a) immediately by Ebyline upon the death of Customer or any illness or injury that materially prevents Customer from performing its obligations under this Agreement; or (b) by either party, without cause or reason, upon notice (which notice may be in e-mail form) to the other party. The foregoing termination rights are in addition to any termination rights that may be provided elsewhere in this Agreement. Ebyline shall have no liability for such termination, except for any payment due and owing for any agreed upon Consideration hereunder. Any termination of this Agreement shall be without prejudice to the rights of either party against the other in respect of any antecedent claim or breach of any of the provisions of this Agreement.
5.3. Survival. The following provisions shall survive any termination of this Agreement: Section 1 (Definitions), Section 2 (Freelancer Agreement), Section 3 (Payment; Taxes), Section 5 (Term and Termination; Survival), Section 6 (Acknowledgements), Section 8 (Use of Customer’s Name and Likeness), Section 11 (Indemnification; Limitation of Liability); and Section 12 (Miscellaneous).
(a) Customer acknowledges, understands and agrees that Customer is providing services to Publishers, not to Ebyline, and Customer has complete and sole discretion to accept or reject any projects from any Publishers and to enter into a form of Freelancer Agreement between Customer and Publisher. The use of the Ebyline Platform by Customer shall not transfer any obligations from Publisher to Ebyline, or create any additional or joint obligations of Ebyline, relating to the compliance of applicable employment laws including, but not limited to, wages, hours, worker classification, or collective bargaining. Customer acknowledges, understands and agrees that any services or tools provided by Ebyline or a third party service provider relating to tax reporting, paperwork and compliance is a purely ministerial payroll function for the convenience of the Publisher and Customer. Customer acknowledges, understands and agrees that by providing such services, Ebyline does not make any independent determination or analysis of any applicable laws of any kind, including, but not limited to, employment laws, and that Ebyline is not a provider of any legal services of any kind to or for the benefit of anyone, including, but not limited to, Publishers and/or Customer.
(b) Customer hereby waives and releases any liability of Ebyline from any act or failure to act of Publishers (including, but not limited to, any breach by Publisher of a Freelancer Agreement between Publisher and Customer). The Freelancer Agreements are entered into by and between Publisher and Customer. Ebyline is not a party and does not participate in the negotiation of such agreements. Customer must pursue any legal claim it may have pursuant to or otherwise arising out of or relating to any Freelancer Agreement solely against Publisher directly.
(c) Customer acknowledges, understands and agrees that:
(i) Customer is not required to perform work for any Publisher and Customer is free to contract to provide services to other companies during the term of this Agreement;
(ii) Customer has complete and sole discretion to provide its services through any other channels other than the Ebyline Platform;
(iii) Ebyline will not provide Customer any business registrations or licenses that may be required;
(iv) Ebyline, does not provide Customer with any office space or any of the necessary means, resources, and/or tools of the trade that Customer uses to provide any services to Publishers; such matters are left solely to Customer to arrange with Publishers as Customer and Publishers see fit;
(v) Ebyline will not dictate the manner or means of the service provided by Customer to Publishers, or the number of hours Customer is required to work; and
(vi) Customer will not be providing any services to Ebyline. All services of Customer will be provided solely to Publishers.
6.2. Taxes. No payroll or employment taxes of any kind shall be withheld or paid with respect to payments to Customer. Customer is solely responsible to report as income all compensation received by Customer, and for paying all payroll and employment taxes including, but not limited to, FICA, FUTA, federal personal income tax, state personal income tax, state disability insurance tax, state unemployment insurance tax, and state workers’ compensation insurance taxes.
6.3. Workers’ Compensation; Unemployment Compensation. Customer acknowledges and agrees that Ebyline will not obtain any workers’ compensation or unemployment compensation insurance on account of Customer or Customer’s authorized employees, subcontractors or subcontractors’ employees, if any. Customer agrees to provide workers’ compensation and unemployment compensation insurance coverage for Customer’s own employees and shall ensure that all such subcontractors provide workers’ compensation and unemployment compensation insurance coverage for their employees.
6.4. No Other Benefits. Ebyline shall not provide to Customer (or to Customer’s authorized employees, subcontractors or subcontractors’ employees, if any) any benefits, including but not limited to holiday, vacation, paid time off, or sick pay; social security; workers’ compensation; unemployment compensation; Medicare; unemployment or disability insurance; health and welfare benefits; profit sharing; 401(k) or any employee stock option or stock purchase plans.
6.5. Other Obligations of Customer. Customer shall exercise independent judgment regarding the manner in which Customer performs it obligations while exercising best efforts to comply satisfactorily with the terms of this Agreement. Customer agrees to comply with all ordinances, laws, orders, rules, and regulations related and/or applicable to its obligations pursuant to this Agreement. Customer shall have no right or authority to assume or create any obligation of any kind or to make any representation or warranty on behalf of Ebyline, whether express or implied, or to bind Ebyline in any respect.
7. REPRESENTATIONS AND WARRANTIES. Customer hereby represents, warrants and covenants to Ebyline that as of the Effective Date, and during the entire term of this Agreement:
7.1. if Customer is an individual, Customer is over the age of eighteen (18);
7.2. Customer shall use its reasonable best efforts in an ethical, diligent and professional manner consistent with highest industry standards and otherwise in accordance with the terms and conditions of this Agreement;
7.3. Customer shall perform its obligations to Publishers in accordance with the law and generally accepted journalistic practices. Customer agrees that the term “generally accepted journalistic practices” includes, but is not limited to, using reasonable care to ensure that facts and statements are true and do not defame or violate the privacy, intellectual property, or any other rights of any other person or entity;
7.4. Customer will cooperate with Publisher in fact-checking and will provide the Publisher, upon request, any supporting documentation for the Work;
7.5. Customer is the owner of all IP Rights relating to any Works transferred to Ebyline hereunder and has full legal power and authority to enter into and perform any Freelancer Agreements in accordance with its terms, including without limitation, the full right and power to grant to Ebyline, and then to Publishers, the rights granted in the Works, without the consent of any governmental body, any regulatory authority, or any third party;
7.6. the Works, and Ebyline’s and Publisher’s use thereof, does not and shall not violate or in any way infringe upon the rights of third parties, including without limitation, any intellectual property rights, rights of publicity or privacy rights of any third party;
7.7. Customer will not act, or fail to act, in any way that will be in violation of any applicable law, rule, or regulation, and Customer will have obtained all permits required to comply with such laws and regulations;
7.8. the Works are free and clear of all claims, liens, encumbrances and the like of any nature whatsoever, and Customer has not made a previous assignment, transfer, license grant or agreement in conflict herewith or constituting a present or future assignment, license grant or encumbrance with respect to any Works in conflict herewith;
7.9. the Works are not in the public domain in any country in the world;
7.10. the Works shall not contain any unlawful, threatening, abusive, false, libelous, defamatory, obscene, pornographic, profane, or otherwise infringing or objectionable content or material of any kind;
7.11. Customer has provided and will continue to provide true, accurate and complete information to Ebyline in connection with this Agreement, including, without limitation, Customer’s legal name, tax identification information, address and other requested contact information;
7.12. the execution, delivery and performance of this Agreement does not conflict with, constitute a breach of, or in any way violate any arrangement, understanding or agreement to which Customer is a party or by which Customer is bound; and
7.13. Customer further represents, warrants and covenants to Ebyline that no claim, whether or not embodied in an action past or present, of any infringement, of any conflict with, or of any violation of any IP Right or similar right, has been made or is pending or threatened against Customer or Customer’s Related Parties relative to the Works, nor to the best of Customer’s knowledge, are there any valid grounds for any claim challenging the ownership, validity, or enforceability of the Works or any IP Rights therein.
8. USE OF CUSTOMER’S NAME AND LIKENESS. Customer grants to Ebyline and its Related Parties, the right to use, in perpetuity, Customer’s name and likeness: (a) in connection with any advertising materials created by Ebyline to promote the Work and services that Customer submits to Ebyline on the Ebyline Platform; and (b) in connection with the credits appearing in any Work, if applicable.
9. INTERNET DELAYS. Ebyline’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Ebyline is not responsible for any delays, delivery failures, or other damage resulting from such problems.
10. DISCLAIMER OF WARRANTIES.
10.1. EBYLINE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY OR AVAILABILITY OF THE EBYLINE PLATFORM. EBYLINE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY EBYLINE.
10.2. CUSTOMER ACKNOWLEDGES AND AGREES THAT EBYLINE WILL BE USING THIRD PARTY SERVICE PROVIDERS FOR DATA STORAGE, SERVER CAPACITY, AND WEB SERVICES. EBYLINE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY TO THE UPTIME OR ERROR RATE OF SUCH SERVICE PROVIDERS. CUSTOMER HEREBY AGREES TO RETAIN A BACKUP COPY OF ALL CONTENT UPLOADED TO THE EBYLINE PLATFORM.
11. INDEMNIFICATION; LIMITATION OF LIABILITY.
11.1. Indemnification. Customer shall defend, indemnify and hold harmless Ebyline and its Related Parties from and against all claims, demands, suits, losses, damages, costs, awards, judgments and expenses (including the costs of investigation and defense and reasonable attorneys’ fees), regardless of the form of action, including, without limitation, those based on, arising out of or relating to: (i) Customer’s breach or alleged breach of this Agreement; (ii) Customer’s breach or alleged breach of any Freelancer Agreement between Customer and Publishers, (iii) Customer’s non-payment of any federal, state or local withholdings or taxes, social security, unemployment, workers’ compensation or disability insurance; and (iv) any acts or omissions (including negligence or strict liability) of Customer’s or any party affiliated with Customer related to the subject matter of this Agreement, including, without limitation, any third party claim or action based on, arising out of or relating to any Work(s). Customer shall promptly reimburse Ebyline and its Related Parties for any liabilities incurred in connection with any such claims.
11.2. Limitation of Liability. EBYLINE IS A PROVIDER OF INTERACTIVE COMPUTER SERVICES, SUBJECT TO THE PROTECTIONS AND LIMITATIONS OF LIABILITY AFFORDED BY THE COMMUNICATIONS DECENCY ACT (47 U.S.C. 223 et seq.) AND OTHER APPLICABLE LAWS. IN NO CASE SHALL EBYLINE OR ITS RELATED PARTIES BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFIT, USE OR OTHER ECONOMIC ADVANTAGE), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES, OR ANY OTHER LEGAL THEORY. EBYLINE’S AND ITS RELATED PARTIES’ TOTAL LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL IN NO CASE EXCEED, IN THE AGGREGATE, THE LESSER OF (I) THE AGREED UPON AMOUNTS PAID OR PAYABLE TO CUSTOMER UNDER THIS AGREEMENT, OR (II) TWENTY-FIVE THOUSAND DOLLARS (U.S. $25,000.00). CUSTOMER ACKNOWLEDGES AND AGREES THAT THESE LIMITATIONS REFLECT A FAIR ALLOCATION OF RISK AND THAT EBYLINE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND CUSTOMER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF EBYLINE AND ITS RELATED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
12.1. Entire Agreement; Amendment. This Agreement and the documents referenced herein contains the complete agreement and understanding between the parties with respect to the subject matter hereof and supersedes any prior agreements or understandings, written or oral. Ebyline strongly recommends that prior to clicking the “I HAVE READ AND ACCEPTED” button below, Customer print and keep a copy of this Agreement (including all documents referenced herein) for its records. This Agreement may be amended or modified at any time, in the sole discretion of Ebyline, and shall be effective upon notice of an updated version of this Agreement. Continued use of the Ebyline Platform after any such revisions shall constitute Customer’s consent to such revisions.
12.2. Severability; Waivers. If any provision of the Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining provisions shall remain in full force and effect. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel to enforce any provision of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought.
12.3. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and fully performed in this state, and the state and federal courts locating in this state will have exclusive jurisdiction over all suits and proceedings arising out of or in connection with this Agreement. Both parties hereby submit to the jurisdiction of such courts for purposes of any such suit or proceeding and waive any claim that such forum is inconvenient or inappropriate.
12.4. Waiver. No waiver or modification of any of the terms of this Agreement shall be valid unless in writing and signed by both parties. Failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of such rights, and a waiver by either party of a default in one or more instances shall not be construed as a continuing waiver or as a waiver in other instances.
12.5. Headings. The section headings and numberings of this Agreement are inserted only for convenience, and shall not be construed as a part of this Agreement.
12.6. Nonassignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Ebyline. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
12.7. Independent Contractors. The parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in this Agreement will be interpreted as constituting either party the joint venturer, partner, representative, agent, or employee of the other party or as conferring upon either party the power of authority to bind the other party in any transaction with third parties.