By clicking “I agree” or by accessing or using the CH Platform, you hereby represent, warrant,and affirm that you’re at least eighteen (18) years of age. If you’re accessing or using the CH Platform on behalf of a company or other organization, these terms also apply to such company or organization as a user, and you represent and warrant that you have full authority to access and use the CH Platform on behalf of the company or other organization and to bind the company or organization. By clicking “I agree” or by accessing or using the CH Platform, you or the entity on whose behalf you use it (“you” or “your” or “Creator”) agree to be bound by the Agreement. If you don’t agree with all of the terms and conditions of the Agreement, you are not authorized to use the CH Platform.
We may unilaterally change or add to the Agreement at any time. In the event of a materialchange, we shall notify you via email or by means of a prominent notice on the CH Platform. You should check the CH Platform periodically for updates. By continuing to use the CH Platform following such modifications, you agree to be bound by such modifications.
1.1 Description of Platform Services.The CH Platform connects creators of video/media productions, or aspects thereof, including but not limited to directors, editors, writers, graphic designers, animators and videographers registered with CH (collectively, “Creators”) with individuals, groups or business entities (collectively, “Clients”) interested in retaining a Creator via the CH Platform to create a video production and/or perform various tasks related thereto, including, but not limited to, directing, editing, writing, photography, graphic design, and animation (each a “Project”). The CH Platform offers a self-service marketplace in which Clients and Creators (collectively, “Users”) can connect and interact directly.
1.2 Profiles. In order to use the CH Platform as a Creator, you’ll need to create a profile andupload samples of your work.
You’ll need to provide information such as:
We may not accept every potential User who submits a profile. We’ll notify you if your profileis rejected.
In additional, when you submit a profile you grant us the right to edit some general informationin the profile ie: company and video descriptions, categories, genres, tags, etc and grant us the right to remove all names and references to yourself, your company, your crew member etc.
You’re solely responsible for reviewing your profile and the accuracy of everything in yourprofile and for updating it as needed.
By creating, submitting, and approving your profile, you grant us the right to post it on the CHPlatform.
1.3 Project Agreements. For each Project, the Client and the Creator will,through the CH Platform, enter into one or more Project Agreements and related Statements of Work (“SOWs”). A single Project Agreement may govern multiple SOWs.
No Project Agreement may affect CH’s rights, obligations or liabilities pursuant to thisAgreement without the prior express written consent of an officer of CH.
1.4 You expressly acknowledge and agree that Clients are independent entities and not CH’scontractors, agents, or employees. We do not make any representations or warranties of any kind with respect to any Client, Project, or Project Agreement, nor shall CH be deemed to endorse any Client. We are not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any Client, or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom. We are not a party to any Project Agreement, and we are in no way responsible for the payment or non-payment of any Client thereunder.
CH has no control over the quality, accuracy, safety, or legality of the transactions that takeplace on the CH Platform, and we are absolutely not responsible for the actions or inactions of Users. If a Client and Creator are unable to resolve a dispute, CH may (but has no obligation to) attempt to mediate between them and arrive at a mutually agreed-upon resolution.
3.1 Access Rights. CH reserves the right to grant, suspend, or terminate accessto and use of the CH Platform, or any portion thereof, in its sole discretion.
3.2 Access Grant and Reservation of Rights. Subject to your compliance withthis Agreement, when your profile goes live we grant to you a non-exclusive, non-transferable, non-sublicensable right to allow your employees and independent contractors acting on your behalf (“Authorized Users”) to access the CH Platform.
Except for the limited rights granted herein to access the CH Platform, we reserve all right,title and interest in and to the CH Platform, including all software, programming interfaces and other technology underlying the user interface and online services through which you interact with CH and other Users in connection with Projects, and all updates, upgrades and improvements to the CH Platform.
3.3 User Names and Passwords. You will safeguard, and ensure that eachAuthorized User safeguards his or her user name and password. You will notify us immediately if you learn of any unauthorized use of any username and password or any other known or suspected breach of security.
3.4 Restrictions.You will not: (i) adapt, alter, modify, improve, translate or create derivative works of the CH Platform; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the CH Platform; (iii) use any person, automated script, software or any other fraudulent or deceptive means, to click or otherwise activate any form of view, action, response mechanism, annotation or advertising unit, so as to increase views, impressions, actions, or skew results; (iv) use any form of paid promotion (i.e. points, lottery, rewards, prizes, sweepstakes, etc. of any kind) to increase views without our express written consent; and (v) except as may be specifically provided in a writing by us, provide any third party access to the CH Platform on behalf of any third party, including as part of a time-sharing, outsourcing or software-as-a-service offering. You may not access or use the CH Platform for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. You will not use the CH Platform to upload, download, display, perform, transmit, or distribute any Content (defined below) that is, nor will you engage in any activities that are, infringing, libelous, defamatory, erroneous, misleading, deceptive, offensive, hateful, obscene, pornographic, abusive, threatening, tortious, in violation of any privacy or intellectual property rights, or otherwise unlawful, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs.
3.5 Responsibility for Content.You are solely responsible for any and all documents, messages, queries, and any other text, content, information or data and/or Project media (the “Content”), which you or your Authorized Users submit, make available, or use with respect to the CH Platform. You represent and warrant that all of your Content (including your profile) is accurate and not misleading and is not in violation of any third party rights. Your posted Content will be visible to other Users and thus is not confidential or privileged. You waive rights of privacy or publicity in connection with your Content.
3.6 Rights in Submissions.You and your Authorized Users: (a) grant to other Users of the CH Platform a non-exclusive right and license to view your Content in connection with the use of the CH Platform as permitted by this Agreement; (b) grant to CH an ongoing, irrevocable, royalty-free, sublicensable, right and license to use, display and distribute your Content on the CH Platform. CH’s rights to publicly display Your Content shall terminate upon your deletion of your profile and Content from the CH Platform. However, CH may retain a copy of your Content for archival purposes, so long as it is not displayed to the public. For clarity, you retain all ownership of your Content, subject only to the licenses granted in the Agreement.
3.7 Feedback.We may use any reports, comments and suggestions in any form regarding the CH Platform that you provide to us (collectively, the “Feedback”). You grant us a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback in connection with any products and services.
3.8 Other Applications.The CH Platform may (but we are not required to) enable your access to third party websites and applications (“Other Applications”). We do not control Other Applications. You are solely responsible for your and your Authorized Users’ use of the Other Applications, including compliance with all terms, rules and policies with respect to such Other Applications. Under no circumstances will we be liable in any way for Other Applications, including any inability or failure to enable access to Other Applications from the CH Platform.
3.9 Availability of Platform.We will use commercially reasonable efforts to make the CH Platform available pursuant to this Agreement except for (a) planned downtime (with reasonable advance notice and to the extent practicable non-business hours); (b) emergency downtime; and (c) any unavailability caused by circumstances beyond our reasonable control. CH reserves the right to modify the CH Platform from time to time and makes no guarantees as to the continuous availability of the CH Platform or of any specific feature(s) or functionality(ies) of the CH Platform.
4.1 The price of any Project, or deliverable thereunder, will be the priceagreed between the Client and Creator as set out in the relevant SOW. Once a deliverable has been completed, the Creator shall deliver the final video file of the deliverable to the Client. The Creator shall then send an email to CH at firstname.lastname@example.org, stating the final deliverables have been sent to the Client and the final amount of payment due for the project. CH will then send an invoice to the Client.
4.2 Clients shall make payments to Creators via CH.CH shall be entitled to a fee equal to 15% of each payment from a Client to a Creator (“CH Fee”). The CH Fee shall be deducted by CH from each payment prior to transferring the balance of the payment to the Creator. Creators that obtain Projects via the CH Platform may not request or accept payments from Clients who posted a Project on the CH Platform any using payment systems other than the CH Platform. Exceptions for pre-existing clients will be considered on a case-by-case basis. You agree that you will not, for a period of one (1) year following the date of your last communication with any Client via the CH Platform (whether or not such communications resulted in the creation of a Project), circumvent the CH Platform by working directly with any Client you originally contacted via the CH Platform. You agree that CH Fees are due on any amounts paid by Clients to you in violation of this requirement.
4.3 Subject to your compliance with the terms and conditions of this Agreement,CH will release the undisputed fees owed to you net five (5) business days after receipt from the Client. CH will make such payment via the agreed payment method.
4.4 You are solely responsible for payment of all income and related taxes owedwith respect to payments paid to you.
4.5 CCH does not guarantee that payments will be made by the Client and yoursole recourse for non-payment shall be against the Client.
Certain information may be made available by Clients to Creatives on the CH Platform on a confidential basis. Such information is subject to this Agreement and to any additional confidentiality terms that Clients may require.
5.1 “Confidential Information”means any and all confidential or proprietary information regarding the disclosing party or its businesses or clients, which may include without limitation: (a) trade secrets; (b) ideas, samples, media, works of authorship, models, products and services (current, future, and proposed) experimental work, development, design details and specifications, financial information; and (d) all other information that the receiving party knew, or reasonably should have known, was the Confidential Information of the disclosing party. that is specifically marked in writing as “Confidential” or “Proprietary”; provided, however, “Confidential Information” shall not include information: (a) that was independently developed by the receiving party in a manner not otherwise in violation or breach of this Agreement; (b) that was rightfully known to the receiving party prior to receipt from the disclosing party; or (c) becomes generally available to the public or known to the receiving party by any means, including from a third party, not involving breach of an obligation of confidentiality with respect to such information. For the avoidance of doubt, all of our APIs, documentation, code, software, technologies, processes, data, and all other non-public information regarding the CH Platform is deemed to be Confidential Information of CH.
5.2 Obligations. The receiving party agrees that at all times andnotwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party any Confidential Information of the disclosing party, except as approved in writing by the disclosing party, and will use the Confidential Information of the disclosing party for no purpose other than as contemplated herein. The receiving party (whether you or us) will protect the confidentiality of the disclosing party’s Confidential Information with the same degree of care, but no less than reasonable care, as used to protect receiving party’s own confidential information of a similar nature. Each party will limit the distribution and communication of such Confidential Information only to employees or agents of the receiving party or the receiving party’s affiliates with a need to know for the purposes contemplated by this Agreement. If receiving party is required pursuant to a legal proceeding or other legal or regulatory requirement to disclose any Confidential Information, reasonable prior notice will be given to the disclosing party in order to contest or limit such disclosure. Each party agrees that the other party may suffer irreparable harm if a party fails to comply with its obligations set forth herein (including other obligations pertaining to intellectual property rights, and the parties agree that the non-breaching party will, in addition to any other remedies available at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof as well as seek specific performance, immediately and without the necessity of posting a bond.
6.1 By CH. We represent and warrant that we have the right, power and authorityto enter into and to perform pursuant to this Agreement.6.2 By Creators. You represent and warrant that: (a) you have the right, powerand authority to enter into and to perform pursuant to this Agreement, including granting to CH
the licenses hereunder for the purposes contemplated herein; and (b) none of your Content or
deliverables conveyed via the CH Platform violate or infringe upon the rights of others,
including the right of privacy or publicity of any person.6.3 Violations.You agree to inform CH immediately if you discover any breaches of the obligations set forth
above. With respect to copyright, our policy is to investigate any allegations of copyright or
other infringement brought to our attention. If you have evidence, know, or have a good faith
belief that your rights or the rights of a third party have been violated and you want us to
delete, edit, or disable the material in question, you must provide us with all of the following
information: (a) a physical or electronic signature of a person authorized to act on behalf of
the owner of the exclusive right that is allegedly infringed; (b) identification of the
copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered
by a single notification, a representative list of such works; (c) identification of the
material that is claimed to be infringed or to be the subject of infringing activity that is to
be removed or access to which is to be disabled, and information reasonably sufficient to permit
us to locate the material; (d) information reasonably sufficient to permit us to contact you,
such as an address, telephone number, and if available, an email address at which you may be
contacted; (e) a statement that you have a good faith belief that use of the material in the
manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a
statement that the information in the notification is accurate, and under penalty of perjury,
that you are authorized to act on behalf of the owner of an exclusive right that is allegedly
infringed. For this notification to be effective, you must provide it to our designated agent
Attn: DMCA AGENT
7.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE CH PLATFORM (INCLUDING OUR CONTENT PROVIDED IN CONNECTION WITH THE CH PLATFORM) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE CH PLATFORM INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, TITLE, AND NON-INFRINGEMENT.
7.2 YOU ACKNOWLEDGE THAT CH DOES NOT CONTROL THE CONTENT OF ANY USERS OF THE CHPLATFORM OR ANY OTHER THIRD PARTY CONTENT, INFORMATION OR MATERIALS, INCLUDING ANY OTHER APPLICATIONS. AS SUCH, CH IS NOT RESPONSIBLE FOR THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF ANY SUCH CONTENT FOR ANY PURPOSE.
7.3 FURTHERMORE AND WITHOUT LIMITATION, CH DOES NOT WARRANT THAT: A) INFORMATIONON THE CH PLATFORM IS CORRECT, ACCURATE, RELIABLE OR COMPLETE; B) THE FUNCTIONS OF THE CH PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; OR C) THE USE OF THE CH PLATFORM WILL RESULT IN ANY PARTICULAR RESULTS.
9.1 Limitation of Liability.EXCEPT FOR A PARTY’S LIABILITY PURSUANT TO ITS INDEMNITY OBLIGATIONS OR FOR ITS BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. CH’S AGGREGATE LIABILITY TO YOU WILL NOT EXCEED THE CH FEES PAID TO CH UNDER THE PROJECT FROM WHICH THE CLAIM ACCRUES. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THESE LIMITATIONS OF LIABILITY, WE WOULD NOT PROVIDE THE CH PLATFORM OR RELATED SERVICES TO YOU.
10.1 Creator’s Indemnification Obligations.You agree to defend, indemnify and hold harmless CH and its affiliates and representatives from damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses” ) resulting from any and all third party claims, judgments or proceedings (collectively,“Claims” ) arising out of: (a) your breach of any of your representations or warranties in this Agreement; (b) your Content and any infringement of rights or violation of law therefrom, including the deliverables and other materials you provide to Client for use with the Projects; or (c) your performance of services under a Project.
10.2 CH’s Indemnification Obligations. CH agrees to defend, indemnify and holdharmless you, your affiliates and representatives from Losses resulting from any and all third party Claims arising out of the infringement by the CH Platform, not including third-party Content, of any intellectual property right of any third party.
10.3 Process.The party seeking indemnification (the “IndemnifiedParty” ), will give to the other party (the “Indemnifying Party”) prompt written notice and control of the defense and settlement of, and reasonable assistance and information regarding, the claim. The Indemnified Party’s failure to do so will not relieve the Indemnifying Party of its obligations under this section except to the extent the Indemnifying Party is materially prejudiced by such failure. The Indemnified Party may participate in (but not control) the defense and/or settlement of any such claim at its own expense but may not settle or compromise the claim without the Indemnifying Party’s written consent. The Indemnifying Party will not settle or compromise any such action in a manner that does not include a release of the Indemnified Party from all liability with respect to the claim.
10.4 This Section 10 states CH’s entire liability, and your exclusive remedy,for any and all third party infringement claims with respect to the CH Platform.
11.1 Term. This Agreement shall commence on the day you first agree to theseterms or access the CH Platform (whichever comes first) and shall continue in full force and effect for so long as you use the CH Platform or until terminated by either party in accordance with this Agreement. Either party may terminate this Agreement for its convenience at any time upon notice.
11.2 Suspension. We may immediately suspend or terminate your access (includingany Authorized User’s) to all or any portion of the CH Platform if we become aware or reasonably suspect that: (a) your use of the CH Platform violates applicable local, state, federal, or foreign laws or regulations or any terms of this Agreement, or (b) your continued use of the CH Platform will disrupt use of the CH Platform by other Users, poses a security risk to the CH Platform, may harm CH or its systems, may subject CH or any third party to liability or if we believe in our reasonable discretion that your use of the CH Platform is unsuitable in any way. CH will provide you with notice of any such suspension and an opportunity to remedy the issue unless we in good faith believe doing so will result in imminent harm.
12.1 Insurance. You represent and warrant that you have procured and willmaintain insurance coverage, at your cost and expense, commensurate with industry standards and to cover your liabilities hereunder for the services you provide. Your insurance will be the primary insurance with respect to each Project. You shall be liable for any cost or loss resulting from the failure to maintain such insurance. Prior to working on any Project(s), you shall furnish CH (and Client, as applicable) with original Certificates of Insurance certifying that your insurance policy is in full force and effect, citing the expiration date of the policy, and stating that the insurance will not be non-renewed or cancelled without at least thirty (30) calendar days prior written notice to CH (and Client, as applicable).
12.2 Trademarks; Media. Neither party grants to the other party any right,title or license to its trademarks pursuant to this Agreement, except that you authorize us to disclose on the CH Platform, and in our marketing collateral and corporate presentations, that you have chosen to use the CH Platform and to include your name, company name, service marks, trademarks, and similar identifiers in such disclosures, provided, however, that we comply with trademark usage guidelines you provide to us, and you may revoke such right at any time upon written notice to CH.
12.3 Governing Law; Limitation of Claims. This Agreement will be governed byand construed in accordance with the laws of the State of New York. The Uniform Computer Information Transactions Act will not apply and will not be invoked in any judicial or arbitral proceeding concerning this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of action against CH arising out of or related to this Agreement must be filed within one year after such claim or cause of action arose, or be forever barred.
12.4 Dispute Resolution. Any disputes arising out of or related to thisAgreement will be referred to and finally settled by binding arbitration in New York County, NY, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of arbitration except as inconsistent with this section. All awards may, if necessary, be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff in any purported class or representative proceeding. Notwithstanding the foregoing, nothing in this section will preclude the right and ability for you or us to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under applicable law.
12.5 Assignment. Neither party may assign, delegate or transfer the Agreementor the party’s rights or obligations under the Agreement, without the other party’s prior written consent, provided that no such consent is required in the event of assignment or transfer to CH’s affiliate or the transfer of the majority of our stock or all or substantially all of our assets relating to this Agreement, by merger, acquisition or otherwise. Any purported assignment or transfer in violation of this paragraph will be void. This Agreement is binding on, and is for the benefit of, the parties and their respective and permitted successors and assigns.
12.6 Entire Agreement, Waiver, Relationship. This Agreement is the entireagreement between CH and you regarding your use of the CH Platform and supersedes any prior agreements or understandings. If any provision of this Agreement is held to be invalid, the provision will be construed to the extent enforceable, and the other provisions of this Agreement remain in full force and effect. No waiver of any provision of this Agreement will be deemed a continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. Nothing in this Agreement will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any User or other person or entity, nor does this Agreement extend rights to any third party.
12.7 Notice. Any notice required hereunder shall be in writing, and will bedeemed to have been duly given upon (i) delivery if delivered personally, (ii) within three (3) days if mailed by first-class, registered or certified U.S. mail, postage prepaid, return receipt requested, (iii) upon the date of delivery if sent via overnight delivery service, or (iv) upon the date of confirmed receipt, as confirmed or acknowledged by recipient, of the email or facsimile if sent via email or facsimile.
12.8 Force Majeure. No delay, failure or omission by either party to carry outor observe any of its obligations hereunder will give rise to any claim against such party or be deemed to be a breach of this Agreement if and for as long as such failure or omission arises from any cause beyond the reasonable control of that party.
12.9 Survival. Provisions of the Agreement that by their nature or terms areintended to survive expiration or termination, will survive including without limitation those relating to indemnity, confidentiality, and limitations of liability.
These Terms constitute a binding agreement between You and Creative Humans, Inc., a New York Corporation (“CHI”), and are deemed accepted by You each time that You use or access any CHI Site or CHI Services. If You do not accept the Terms stated here, do not use the CHI Site and the CHI Services.
Please read carefully these Client Terms and other applicable terms and documents referenced and incorporated herein (collectively, the “Agreement”) before using the technology platform and online marketplace at https://www.creativehumans.com (collectively, the “CHI Platform”) provided by Creative Humans Inc. (“CHI” or “we” or “us” or “our”).
By clicking “I agree” or by accessing or using the CHI Platform, you hereby represent, warrant, and affirm that you’re at least eighteen (18) years of age and you or the entity on whose behalf you are acting (“you” or “your”) agree to be bound by this Agreement, to the exclusion of all other terms. If you are acting on behalf of another person or legal entity, you represent that you have the authority to bind such person or legal entity.
CHI may revise these Terms at any time by posting an updated version to this Web page. You should visit this page periodically to review the most current Terms because they are binding on You. Users who violate these Terms may have their access and use of the CHI Sites suspended or terminated, at CHI’s discretion.
1.1. Description of Platform Services. The CHI Platform Services connects creators of video/media productions or aspects thereof registered with CHI (collectively, “Creators”) with Clients (including brands, advertisers, publishers and/or agents on behalf of such entities) (collectively, “Clients”) interested in retaining a Creator via the CHI platform to create a video production and/or perform various tasks related thereto including but not limited to directing, editing, writing, photography, graphic design, and animation (each a “Project”). The CHI Platform offers a self-service marketplace in which Clients and Creators (collectively, “Users”) can connect and interact directly.
1.2. Profiles. In order to use the CH Platform as a Client, you’ll need to create a profile and provide information and material such as:
Some of this information will appear in your Project briefs, and some information will only be used for our internal purposes. We may not accept every potential Client who submits a profile. We will notify you if your profile is rejected. In addition, when you submit a profile you grant us. the right to edit it before it goes live. You’re solely responsible for the accuracy of everything in your profile and for updating it as needed.
1.3. License. During the Term (as defined in Section 3.1 below) and in consideration of the fees set forth in Exhibit B, CHI hereby grants to the Client a limited, nonexclusive, non-sublicensable right and license for an unlimited number of “Authorized Users” (as defined below) to access and use the Platform to connect with CHI filmmakers including but not limited to production companies, animation studios, directors, editors, writers, designers and photographers (“Creators”) for the purpose of creating a video production and/or perform various tasks related to filmmaking (“Project”). Authorized User” means any individual who is any employee or independent contractor authorized by Client to access and use the Platform pursuant to the terms and conditions of this Agreement.
1.4. Registration. In order to use the Platform, Client will be required to register as an authorized user. Client agrees to provide accurate, current and complete information (“Registration Data”) in connection with Client’s registration and use of the Platform and agrees to maintain and promptly update its Registration Data as necessary to maintain its accuracy. If Client is a business, company, corporation, government, or non-profit entity, Client must use the actual name of its organization. Client may not use someone else’s name, a name that violates any third party right, or a name that is fictitious, obscene or otherwise objectionable. CHI reserves the right to suspend, restrict or terminate access to the Platform, or any portion thereof, on the basis of inaccurate or incomplete Registration Data.
1.5. Content. Client agrees that it is solely responsible for any and all documents, messages, queries, and any other Project Assets (as defined herein), text, content, information and/or data (“Content”), which Client or Client’s Authorized Users submit, make available, or use with respect to CHI and/or the Platform. Client represents and warrants that all of Client’s Content is accurate, not misleading and is not in violation of any third party rights. Prior to submission, Client must have obtained all necessary rights and licenses in all elements of Client Content. Other than Client’s Content which constitutes Confidential Information (as defined herein), Client’s Content is not confidential or privileged, and Client waives rights of privacy or publicity in connection with Content.
1.6. Rights. Client and Client’s Authorized Users: (a) grant to other users of the Platform a non-exclusive right and license to use Client’s Content in connection with the use of the Platform as permitted by this Agreement; (b) grant to CHI an ongoing, irrevocable, royalty-free, sub-licensable, right and license to use, display and distribute Client’s Content including feedback you provide to us in the form of comments and suggestions (collectively, “Feedback”), in any manner or media now known or hereafter devised throughout the world, in perpetuity without compensation; and (c) agrees that CHI may use Client’s Project Assets but only in connection with providing them on the Platform to its Users pursuant to this Agreement and for promotional purposes, subject to any applicable confidentiality obligations herein. The Project Terms provide additional licenses and rights granted with respect to Deliverables and Project Assets. For clarity, Client retains all ownership in Content, Project(s), Deliverables and/or Project Assets, subject only to the licenses granted in this Agreement.
1.7. Use of Content. Client and each User must evaluate and will bear all risks associated with the use of or reliance on Content obtained through the Platform. CHI will not pre-screen or actively review Content, but CHI may refuse or delete any Content of which CHI becomes aware of that fails to fulfill the purpose of the Platform, is in breach of this Agreement, is contrary to law, or is otherwise inappropriate in CHI’s sole discretion. Under no circumstances will CHI be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions therein, or for any loss or damage of any kind incurred as a result of the use thereof. CHI will have no obligation or liability to Client or Client’s Authorized Users to maintain, store, or license any Content.
1.8. Other Applications. The CHI Platform may (but we are not required to) enable your access to third party websites and applications (“Other Applications”). We do not control Other Applications. You are solely responsible for your and your Authorized Users’ use of the Other Applications, including compliance with all terms, rules and policies with respect to such Other Applications. Under no circumstances will we be liable in any way for Other Applications, including any inability or failure to enable access to Other Applications from the CHI Platform.
1.9. Production Services Agreement. Client and any Creator engaged through the Platform must enter into a separate agreement that specifies the terms of the engagement (“Production Services Agreement”) as shown in Exhibit A attached hereto. For each separate Project, the Client and the Creator will enter into a separate Statement of Work (“SOW”) in which the Client and Creator will agree to specific terms regarding the Project, including the products, images, trademarks, logos, and creative and textual materials to be provided by the Client for use by the Creator in the Project (“SOW”), each item of Project media (“Deliverable”) as well as decide the scope and specifications of the Project, including the budget and the date by which the Project must be completed (“Delivery Date”) and the number of rounds of revisions/edits for the Project (“Revisions”), among other specific details, as shown in Exhibit B attached hereto.
1.10. Project Terms. All SOWs for Projects constitute the “Project Terms.” If any Project Terms conflict with other terms of this Agreement, the Project Terms will govern but only as to the specific Project to which the Project Terms apply. However, no Project Terms may affect CHI’s rights, obligations or liabilities pursuant to this Agreement without prior express written consent of an officer of CHI, and any such unapproved Project Terms will be deemed void and of no force or effect as against CHI. Upon finalization of the Project Agreement and/or SOW, a binding contract shall be formed between the Client and the Creator based on the Project Terms therein. Clients may not offer direct payments to Creators but shall be make Payments to CHI according to the terms of this Agreement’s Section 4.1.
1.11. No Agency or Endorsement. Client expressly acknowledges and agrees that Creators are independent entities and not CHI’s contractors, agents or employees. CHI does not make any representations or warranties of any kind with respect to any Creator, Project, or Project Terms, nor shall CHI be deemed to endorse any Creator. CHI is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any Creator, or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom. CHI is not a party to any Project or Project Terms, and we are in no way responsible for the performance or non-performance of any Creator thereunder.
1.12. Neutral Venue. CHI has no control over the quality, accuracy, safety, or legality of the transactions that take place on the CHI Platform, and we are absolutely not responsible for the actions or inactions of Users. If a Client and Creator are unable to resolve a dispute, CHI may, but has no obligation to, attempt to mediate between them and arrive at a mutually agreed upon resolution.
1.13. Platform Data. CHI hereby authorizes Client to access, use and display Platform Data (as defined below) as requested by Client solely for the purpose of connecting with Creators under the terms of this Agreement for the benefit of Client and for no other purpose of Client or of any other party. Nothing in this Agreement shall be construed as giving Client any right to, and Client shall not, and shall not authorize or assist any other party to, modify any of the Platform Data or otherwise make copies of all or part of the Platform Data onto any media, except as may be expressly and clearly permitted by this Agreement. Client agrees that it shall not, and shall not authorize or assist any other party to, disassemble, decompile or reverse engineer all or any part of the Platform Data or introduce into the Platform any software, virus, worm, “back door,” Trojan Horse or similar harmful code. Except as expressly set forth herein, Client shall not use, duplicate, transfer, sell, distribute or otherwise disclose the Platform Data to any other party. Client also agrees not to (i) use any person, automated scripts, software or any other fraudulent or deceptive means, to click or otherwise activate any form of view, action, response mechanisms, annotation or advertising unit, so as to increase views, impressions, actions, or skew results; (ii) use any form of paid promotion (i.e. points, lottery, rewards, prizes, sweepstakes, etc. of any kind) to increase views without our express written consent; and (iii) except as may be specifically provided in writing by us, provide any third party access to the CHI Platform on behalf of any third party, including as part of a time-sharing, outsourcing or software-as-a-service offering. You may not access or use the CHI Platform for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. You will not use the CHI Platform to upload, download, display, perform, transmit, or distribute any Content (defined below) that is, nor will you engage in any activities that are, infringing, libelous, defamatory, erroneous, misleading, deceptive, offensive, hateful, obscene, pornographic, abusive, threatening, tortious, in violation of any privacy or intellectual property rights, or otherwise unlawful, or to transmit malicious code, viruses, time bombs , or similar mechanisms, scripts, agents, bots or programs.
“Platform Data” means data provided by CHI or its Affiliates in any form, and data generated in connection with CHI’s and its Affiliates’ use of the Platform. Platform Data shall include Personal Information defined in Section 8.10. CHI owns all rights, title and interest in and to the Platform Data.
2.1. Ownership. CHI is and at all times shall remain the sole and exclusive owner of all rights and interests to the Platform and of any and all intellectual property rights related thereto, including developments therefrom, unless otherwise provided under the terms of this Agreement. “Intellectual Property Rights” include all inventions, discoveries, trademarks, patents, trade names, copyrights, moral rights, jingles, know-how, intellectual property, software, shop rights, licenses, developments, research data, designs, technology, trade secrets, test procedures, processes, route lists, computer programs, computer discs, computer tapes, literature, reports and other confidential information, intellectual and similar intangible property rights, whether or not patentable or copyrightable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third party usage), and any and all applications for, restrictions of and extensions, divisions, renewals and reissuance of, any of the foregoing, and rights therein, including without limitation (a) rights under any royalty or licensing agreements, and (b) programming rights, whether on film, tape or any other medium which Party owns or has a right to use.
2.2. Reproduction. No part of the Platform may be reproduced or transmitted in any form, by any means, whether electronic (including email), mechanical, or otherwise, including photocopying and recording, except that CHI authorizes Client to download, store and print a single copy of the materials displayed on the Platform for Client’s internal business purposes only, solely in accordance with this Section. The right to download and store or output the materials displayed on the Platform is granted for viewing use only, and is subject to the following conditions: i) materials may not be reproduced or modified in any form and reproduction or editing by any means mechanical or electronic without the explicit written permission of CHI is expressly prohibited; ii) materials may be used solely for noncommercial, informational purposes; and iii) copyright, trademark, and other proprietary notices may not be removed.
2.3. Client Property. Client is or shall be the exclusive owner of and shall retain all right, title and interest to all Intellectual Property Rights that Client, respectively, owns or has the right to use, including any Content, Project Assets and information Client uploads to the Client Profile (the “Client Property”).
2.4. Cooperation. Each party agrees to take all action and cooperate as is reasonably necessary, at the other party’s request and expense, to protect the other’s respective rights, titles, and interests specified in this Section and further agrees to execute any documents that might be necessary to protect each party’s ownership or such rights, titles, and interests.
3.1. Term. This Agreement shall commence upon the Effective Date hereof and, unless otherwise terminated in accordance with the terms of this Agreement, shall remain in full force and effect for two (2) years (“Initial Term”). Thereafter, CHI, in its sole discretion, may renew this Agreement by providing notice to Client prior to the expiration of the then-current term for two (2) additional one (1) year terms with the same terms and conditions as set forth herein, other than pricing, which shall be negotiated by the parties in good faith, each, a “Renewal Term.” The Initial Term and any Renewal Term(s) are referred to herein as the “Term”.
3.2. Termination for Convenience. CHI may terminate any services related to any Project under this Agreement at any time upon thirty (30) days’ prior written notice to Client. In such event, Client’s sole obligation and liability to CHI shall be to pay any unpaid fees specified in Exhibit B based on the use of the Platform and Services up to the date of termination.
3.3. Termination for Cause. Either party may terminate this Agreement if the other party is in breach of this Agreement and fails to cure such breach within thirty (30) days after the non-breaching party provides notice of the breach. Subject to Section 11, either party may also terminate this Agreement immediately upon notice if the other party (a) is liquidated, dissolved, or adjudged to be in a state of bankruptcy or receivership, (b) is insolvent, unable to pay its debts as they become due, makes an assignment to or for the benefit of its creditors or takes advantage of any law for the benefit of debtors, (c) ceases to conduct business for any reason on an ongoing basis leaving no successor in interest, (d) transfers control of any portion of its business or assets, or (e) enters into a contract for the sale of more than 50% of its business or assets or a contract related to a merger or consolidation of its business.
If CHI terminates under this Section 3.3, Client shall promptly provide to CHI payment of any unpaid fees specified in Exhibit B.
4.1. Payment. CHI shall be entitled to a commission equal to 15% of the gross fees paid or payable by Client for Project (“Commission”). Client shall make full payment of Fees for Creator Services and Commission to CHI. Commission shall be deducted by CHI from each payment by Client prior to transferring the balance to the Creator (irrespective of any refunds for Project cancellations by Client). The Commission shall become due per the payment terms in the SOW.
4.3. Renewal Pricing. Pricing for any Renewal Terms shall be mutually negotiated by the parties in good faith.
4.4. Invoices. CHI shall invoice Client for the fees for the Project according to the pricing set forth in Exhibit B. All invoices and payments shall be in United States Dollars. Each invoice shall reference this Agreement and include a detailed description of the Project and Services provided, and the fees for each. CHI shall send all invoices to the attention of Client.
Client agrees that, with respect to Creators providing services hereunder, the following shall apply: Client shall be responsible for the direction and coordination of the Services of Creators and for all payments for Creator Services as provided by CHI for Project in the SOW. Creators in good faith produces the Project in accordance with the requirements of the SOW, then in the event such Project is rejected, not published, or otherwise canceled by Client in any way, Client understands and hereby agrees to submit payment as provided in the Production Services Agreement.
Once the Service for Project is provided to Client, Client shall have thirty (30) days to provide cancellation notice. If cancellation notice is not provided within the timeframe specified herein, Services for Project will be considered accepted as meeting Clients needs in accordance with the requirements specified in Exhibit B and to Client’s reasonable satisfaction and full Fee and Commission shall become due. In the event Client is dissatisfied with the Service, Client shall notify CHI in writing.
7.1. Insurance. Each Party performing Services under this Agreement, either oral or written shall, at its sole expense, throughout the performance of its Services pursuant to the Agreement and for such additional time as may be specified below, maintain:
7.1.1. (a) Comprehensive General Liability and Professional Liability coverage of no less than $1,000,000.00 combined single limit per occurrence, and $2,000,000.00 aggregate from a company rated A+ or better by A.M. Best or equivalent and (b) Real and Personal Property coverage. Both shall protect Client, CHI, Creators and additional insureds from claims for personal injury (including bodily injury and death) and property damage which may arise from or in connection with the performance of Services hereunder or from or out of any act or omission of the Client, its officers, directors, agents, Subcontractors or employees. Such policies shall be on an occurrence basis. If any of such policies are written on a “claims made” basis, such policies must be kept in effect for at least five (5) years past the termination of this Agreement, or such party may purchase “tail” coverage. The “tail” coverage policy or policies shall have the same policy limits as described herein with respect to the applicable coverage. Certificates evidencing insurance coverage may be requested by either party at any time after execution of this Agreement. Comprehensive General Liability and Professional insurance must be maintained for three years following completion of the work;
7.1.2. Workers’ Compensation Insurance as required by applicable law, and Employer’s Liability Insurance with minimum limits of $1,000,000.
7.2. Insurance Procedures. All insurance required in this Section shall:
7.2.1. contain an exception to any Insured versus Insured or Cross Liability exclusions for claims brought by an additional insured against any other insured;
7.2.2. be primary and not contributory with regard to any other available insurance to and contain a waiver of subrogation in favor of CHI its parent, and any subsidiaries, related and affiliated companies of each, and the officers, directors, shareholders, employees, agents and its assignees of each;
7.2.3. be written with companies and on forms acceptable to CHI and shall contain a provision or endorsement that the policy may not be canceled, terminated, or changed or modified unless thirty (30) days prior written notice therefrom is furnished to CHI;
7.2.4. be evidenced on certificates of insurance (or copies of policies, if required by CHI) and be furnished to CHI. CHI’s failure to request, review or object to the terms of such certificates or insurance shall not be deemed a waiver of Client’s obligations or the rights of CHI; and
7.2.5. in no way limit or diminish Client’s liability under other provisions of this Agreement.
8.1. CHI Confidential Information. Client may, during the course of its provision of the Services hereunder, have access to, and acquire knowledge from discussions with CHI or its Affiliates’ personnel and from material, data, systems and other information of or with respect to CHI or any of its Affiliates which may not be accessible or known to the general public, including, but not limited to, any CHI Data, information concerning Creators, software, techniques, processes, procedures, data, research, development, future projects, products or services, projects, products or services under consideration, content under development, business plans or opportunities, business strategies, contracts, relationships, finances, costs, Clients, customers or employees and other third party proprietary or confidential information that CHI or an Affiliate treats as confidential (“Confidential Information”). Client shall treat the existence of this Agreement and proprietary information about the Platform hereunder as Confidential Information. All Confidential Information acquired by Client from any discussions, materials, data, systems, information or otherwise through its engagement hereunder shall be held in confidence and shall not be used by Client other than for the limited purpose of the Services herein.
8.2. Limitation on Disclosure. Client further agrees to limit disclosure of the Confidential Information to those of its employees and Subcontractors who have a need to know the information to effect the use permitted herein. Client agrees to protect the Confidential Information with the same degree of care normally used to protect its own similar confidential information, but in no event less than that degree of care as may be reasonably necessary to prevent any Confidential Information from being disclosed or used for other than the purpose specified in this Agreement.
8.3. Misuse of Confidential Information. In the event Client becomes aware of, or has reasonable grounds to suspect, any unauthorized acquisition, retention or disclosure, misappropriation or misuse of any Confidential Information by any person or entity, Client shall immediately notify CHI in writing, and, in the event of legal action brought by CHI in connection therewith, Client agrees that it will cooperate and provide such assistance at Client’s expense as may be reasonably necessary to enable CHI to successfully prosecute such legal action.
8.4. Ownership of Confidential Information. All rights in and title to the Confidential Information supplied by CHI or an Affiliate, shall remain in that party. Neither the execution and delivery of this Agreement, nor the furnishing of any Confidential Information shall be construed as granting to Client either expressly, by implication, estoppel or otherwise, any license under any invention, copyright, trade secret or patent now or hereafter owned or controlled by the party furnishing the same, nor any right to use, sell, develop, exploit or copy the Confidential Information made available to Client, except to fulfill the purpose of this Agreement.
8.5. Return of Confidential Information Client agrees that, unless earlier returned, any Confidential Information disclosed to it and all copies thereof shall be returned to CHI promptly following CHI’s written demand therefor or at the completion of the use by Client permitted herein. In the event of termination or expiration of this Agreement, Client shall, within 14 days following the date of termination or expiration, provide to CHI all CHI Data in a commercially standard database export format, together with a certification by an officer of Client that all Confidential Information has been removed from Client’s systems.
8.6. Exclusions. Confidential Information shall not include any information that: (a) is or subsequently becomes available to the public without Client’s breach of any obligation under this Agreement, (b) was known to Client prior to CHI’s or an Affiliate’s disclosure of such information to Client, (c) is obtained from a third party without violation of an obligation of nondisclosure and without restrictions on its disclosure, or (d) is independently developed by Client without reference to or use of the CHI’s or its Affiliates’ Confidential Information.
8.7. Export Restriction. Client agrees not to export, directly or indirectly, any technical data acquired from CHI or an Affiliate hereunder or any product utilizing any such data to any country for which the U.S. Government or any agency of the U.S. Government at the time of export requires an export license or other governmental approval, without first obtaining such license or approval.
8.8. Security. In performing its Services, Client shall comply with all of CHI’s security requirements, including those listed in Exhibits A and B. Any violation of Exhibits A or B shall constitute a material breach of this Agreement.
8.9. Information Request. Upon receipt by Client of any request, demand, notice, subpoena, order or other legal information request relating to legal proceedings or investigations by third parties relating to Confidential Information (each a “Legal Information Request”), Client shall immediately notify CHI and provide CHI with a copy of all documentation of such Legal Information Request, to the extent Client may legally do so, and shall cooperate with CHI in responding to such Legal Information Request. Client and any Subcontractor shall not disclose any Confidential Information to any such third party without advance consent from CHI, or until CHI has had a reasonable opportunity to contest the Legal Information Request or, if Client or such Subcontractor is legally prohibited from informing CHI of such Legal Information Request prior to disclosure, Client or such Subcontractor shall resist such Legal Information Request on behalf of CHI to the extent it can reasonably do so. In any event, Client or any Subcontractor must notify CHI of any such Legal Information Request at the earliest time it is not legally prohibited from doing so.
8.11. Obligations Regarding Data Use and Compromise. Client agrees to use the CHI Data only in connection with providing the services to CHI as authorized under this Agreement. Client shall promptly inform CHI in writing of any known or reasonably suspected loss, misuse, or unauthorized access, destruction, deletion, modification, or other compromise, including a penetration of Client’s network or computer resources, that occurs with respect to any CHI Data (collectively, “Security Breach”) and shall reasonably cooperate with CHI in the investigation and remediation of any such occurrence. Such remediation may include, but is not limited to the provision of notice concerning such occurrence to any person affected or potentially affected thereby (“data subjects”) and applicable authorities. Under no circumstances, other than as required by applicable Law, shall Client send notice concerning a Security Breach to data subjects without CHI’s prior written approval. To the extent that a Security Breach results from Client’s or its Subcontractor’s acts or omissions, negligence or Client’s failure to comply with its representations, warranties and/or obligations hereunder, Client shall reimburse CHI for all reasonable investigation, remediation, forensic and legal costs incurred by CHI or its Affiliates in connection with such Security Breach.
CHI represents and warrants that:
9.1. Proprietary Rights. (a) It owns or has the legal right to Platform; and (b) no part of the Platform, when used in accordance with this Agreement, will misappropriate or infringe any third party’s trade secrets, trademarks, copyright, patent rights or other proprietary rights (“Intellectual Property Rights”), nor has any claim of such infringement been threatened or asserted.
9.2. Performance. All Services shall be performed by CHI, in a competent and workmanlike manner in accordance with industry standards.
9.3. Malicious Code. (a) The Platform shall contain no computer instructions whose purpose is to disrupt, damage or interfere with Client’s or its Affiliates’ use of their data, programs, computers, systems or telecommunications or broadcast equipment, software or services for their commercial purposes; and (b) unless expressly authorized in writing by an officer of CHI, the Platform shall not contain any key, node lock, time-out, logic bomb or other function, implemented by any means, which may restrict Client’s or its Affiliates’ use of or access to any data, programs, computers, systems or telecommunications or broadcast equipment, software or services (collectively, “Malicious Code”). In the event that there is a breach of the foregoing warranty, CHI will immediately notify Client of such breach and CHI will use its best efforts to immediately eliminate the Malicious Code. As of the Effective Date and during the Term, CHI will have implemented and maintained suitable virus protection for the Platform. Client represents and warrants that:
9.4. Best Practices. It has implemented and will use, and will ensure that its Authorized Users have implemented and will use, in the provision of the Service, business practices, technology, operating procedures and methodologies consistent with industry best practices to prevent the disclosure or distribution of CHI Data or other Confidential Information in any form or manner not specifically authorized or requested by CHI.
9.5. Compliance with Laws. It has and will comply with all applicable federal, state and local laws, statutes, acts, ordinances, rules, codes and regulations, executive orders and other official releases of or by any government, or any authority, department or agency thereof, in any jurisdiction from or in which the Platform is provided or received, including, but not limited to, those applicable to the privacy and protection of individuals, and the security of their Personal Information, including trans-border data transfers and data breach notification requirements (“Laws”).
9.6. Objectionable Content. None of Client’s Content, in CHI’s sole discretion: (i) is defamatory, libelous or obscene, or contains pornography or is sexually explicit (ii) violates or infringes upon the rights of others, including the right of privacy or publicity of any person or any of Client’s confidentiality obligations or other obligations under this Agreement, (iii) promotes illegal activities or communicates hate or discrimination based on race, sex, religion, nationality, sexual orientation or age, (iv) contains materials that promote or glorify violence, firearms or other weapons, or (v) violates any applicable laws, regulations or self-regulatory guidelines.
9.7. Violations. You agree to inform CH immediately if you discover any breaches of the obligations set forth above. With respect to copyright, our policy is to investigate any allegations of copyright or other infringement brought to our attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want us to delete, edit, or disable the material in question, you must provide us with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an email address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to our designated agent at: Attn: DMCA AGENT email@example.com.
9.8. Non-Dealing. Client will not, for a period of one (1) year following the date of Client’s last use of the Platform or communication with any Creator, whichever is longer and whether or not such communications resulted in the creation of a Project, circumvent the Platform for Projects or related services by any Creator outside of the terms of this Agreement. If this term is violated, such violation will be considered a breach of this Agreement and any unpaid Commissions as a result of such breach will become due immediately and payable by Client in addition to any remedies allowable under contract law.
10.1. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE CHI SERVICES AND PLATFORM (INCLUDING CONTENT PROVIDED IN CONNECTION WITH THE CHI PLATFORM) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND, AND TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICES AND CHI PLATFORM INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT.
10.2. CLIENT ACKNOWLEDGES THAT CHI DOES NOT CONTROL THE CONTENT OF ANY USERS OF THE CHI PLATFORM OR ANY OTHER THIRD PARTY CONTENT, INFORMATION OR MATERIALS INCLUDING ANY OTHER APPLICATIONS. AS SUCH, CHI IS NOT RESPONSIBLE FOR THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF ANY SUCH CONTENT FOR ANY PURPOSE.
10.3. FURTHERMORE AND WITHOUT LIMITATION, CHI DOES NOT WARRANT THAT:
A) INFORMATION ON THE SERVICES IS CORRECT, ACCURATE, RELIABLE OR COMPLETE;
B) THE FUNCTIONS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE; OR
C) THE USE OF CHI’S SERVICES WILL RESULT IN ANY PARTICULAR RESULTS.
10.4. CHI will use commercially reasonable efforts to make the Platform available pursuant to this Agreement except for (a) planned downtime; (b) emergency downtime; and (c) any unavailability caused by circumstances beyond our reasonable control. CHI reserves the right to modify the Platform from time to time and makes no guarantees as to the continuous availability of the Platform or of any specific feature(s) or functionality(ies) of the Platform.
10.5. Client is solely responsible for any and all acts or omissions taken or made in reliance on the Services or the information contained therein, including inaccurate or incomplete information. Client acknowledges and accepts that CHI does not create or deliver Projects, and agrees that CHI has no liability for the Projects delivered. CHI does not guarantee that the project will be delivered to the Client by the Creator and Client’s sole recourse shall be against the Creator. Client agrees that CHI has made no agreements, representations or warranties other than those expressly set forth herein, and that no future agreement, representation or warranty with regard to the Services provided under this Agreement shall be effective unless expressly stated in a written amendment to this Agreement signed by both parties.
11.1. Infringement. Subject to Section 11.3, Client, at its own expense, shall defend, indemnify and hold CHI, its Affiliates and each of their officers, directors, employees, agents, successors and assigns (the “CHI Indemnified Parties”) harmless from and against all suits, claims, demands, penalties, fines, charges, proceedings, causes of action, damages, losses, liabilities, costs and expenses of any nature whatsoever (including attorneys’ fees) (“Losses”), that result from or arise out third-party claims of (a) Client’s breach of any of its representations or warranties in this Agreement; (b) Client’s Content and any infringement of rights or violation of law therefrom, including the Project Assets and other materials Client provides for use in Projects, provided that the Indemnified Party used Client’s Content as permitted by this Agreement; (c) compliance with Client’s specifications and instructions regarding the Project; or (d) the distribution, sale or use of Client’s products or services, including any claims for personal injury or tangible property damage, or the infringement of any intellectual property right or other right of any person or entity by such products and services.
11.2. Platform Infringement. CHI, at its own expense, shall defend, indemnify and hold Client harmless from and against all Losses whatsoever arising from third-party claims of CHI’s actual or alleged (a) breach of any representation, warranty or covenant hereunder, or any other failure to perform its obligations hereunder, (b) violation of any Laws, (c) Security Breach or failure to comply with the confidentiality, security or privacy obligations hereunder, including costs of notification to persons whose Personal Information has been, may have been or may be disclosed as a result of such breach or failure and applicable domestic and international authorities and the cost for providing daily credit monitoring, access to credit reports and of obtaining identity theft services for the benefit of such persons, or (d) error or omission or any of CHI’s employees, Subcontractors or agents or their respective officers, directors, agents, subcontractors, invitees or employees.
11.3. Exceptions to Indemnification Obligations. Parties shall not be obligated to indemnify, defend, or hold harmless the Parties hereunder but only to the extent the Claim arises directly from Project or use of Platform in violation of this Agreement or applicable Laws.
11.4. Procedures. Parties will give prompt written notice of any such claim and shall give reasonable cooperation and assistance, at no cost to the non-breaching Party or any Affiliate, with respect to such defense. In the event that any part of the Project or Platform does or is likely to become the subject of a suit, action or claim of infringement and its use is or may be enjoined, the Indemnifying Party shall, at its option and subject to written approval of the Indemnified Party, at its own expense, modify the Project or Platform, so that it is non-infringing or better than the unmodified Project or Platform. In the event, CHI Platform is found to be infringing, CHI shall (a)procure for Client and its Affiliates sufficient rights to allow Client and its Affiliates to use the infringing part of the Platform as contemplated hereunder, or (b) substitute a non-infringing replacement acceptable to Client and with functionality that is the same or better than the Platform and pay costs for any such substitution. Any replacement part of the Platform shall be subject to all of the warranty and other terms and conditions of this Agreement, including without limitation, the indemnification provisions.
11.5. Defense. The Indemnifying Party shall have full responsibility for and control of the defense (including any settlement) of any such suit or proceeding; provided, however, that (a) such defense shall be conducted at Indemnifying Party’s sole cost and expense, (b) Indemnifying Party shall keep Indemnified Party informed of, and consult with Indemnified Party in connection with, the progress of such litigation and settlement and (c) Indemnifying Party shall not have the right to settle any such claim without the prior written approval if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to, or admission or acknowledgment of any wrongdoing (whether in tort or otherwise) on the part of Indemnified Party or any Affiliate.
11.6. Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL NOT APPLY TO: (A) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; (B) LIABILITY RESULTING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OR SECURITY OBLIGATIONS HEREUNDER, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CHI’S AGGREGATE LIABILITY TO CLIENT WILL NOT EXCEED THE FEES PAID TO CHI UNDER THE PROJECT FROM WHICH THE CLAIM ACCRUES. CLIENT UNDERSTANDS AND AGREES THAT ABSENT CLIENT’S AGREEMENT TO THESE LIMITATIONS OF LIABILITY, CHI WOULD NOT PROVIDE THE CHI PLATFORM OR RELATED SERVICES TO CLIENT.
11.7. Disputes between Users. If Client has a dispute with one or more Users of the Platform, Client agrees that CHI is under no obligation to become involved and Client hereby releases CHI, its affiliates and representatives from claims, demands and damages (actual, direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable and unforeseeable, arising out of or in any way connected with such disputes. If Client is a California resident, Client waives California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
This Agreement is not transferable or assignable by either party, whether in whole or in part, voluntarily or by merger, consolidation or sale, or otherwise by operation of law without the prior written consent of the other party; provided however, CHI may transfer or assign this Agreement to any of its Affiliates. Notwithstanding the foregoing, Client may assign this Agreement to an affiliate or to an acquirer of all or substantially all of its business or assets; provided, however, that Client must provide CHI with written notice of such intent to assign prior to assignment and must provide CHI with an opportunity to terminate this Agreement for cause immediately. Subject to the foregoing, this Agreement and each and every provision hereof, shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.
13.1. Notice. Any notice or other communication required or permitted to be given hereunder shall be given in writing at firstname.lastname@example.org.
13.2. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future law effective during the Term, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from
13.3. Waivers. Waivers, to be binding, must be made by writing, referring to this Agreement and signed by the party whose right is waived. No waiver of the terms of this Agreement or failure by either party to exercise any option, right or privilege on any occasion or through a course of dealing shall be construed to be a waiver of the same on any other occasion.
13.4. Headings. The section headings used in this Agreement are provided solely for reference and the convenience of the parties, form no part of this Agreement and shall not affect its interpretation.
13.5. Disputes. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be referred to senior management of the parties for good faith discussion and resolution. If any dispute, controversy, or claim cannot be resolved by such good faith discussion between the parties, this Agreement will be referred to and finally settled by binding arbitration in New York County, NY, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of arbitration except as inconsistent with this section. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same.
13.6. Attorney’s Fees. The prevailing party in any litigation under this Agreement shall be entitled to recover all costs actually incurred in connection therewith, including, without limitation, reasonable attorneys’ fees.
13.7 Governing Law. The laws of the State of New York and the laws of the United States shall govern the interpretation and enforcement of this Agreement, without giving effect to principles of conflicts of law. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder. Any action or proceeding brought by either party against the other party arising out of or related to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction located in the State of New York, Borough of Manhattan. THE PARTIES HEREBY WAIVE TRIAL BY JURY WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING.
13.8. Remedies. No remedy herein conferred is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise.
13.9. Continued Performance. Client agrees that if any problem or dispute arises between the parties, it shall not interrupt, impede, reduce or adversely affect the provision of services to CHI or any performance of any of its obligations relating to termination, unless authority to do so is granted by CHI in writing or conferred by a court of competent jurisdiction and Client agrees to continue to make payment of any undisputed charges.
13.10. Independence. Client is an independent contractor and nothing herein shall be construed to create a partnership, employment, agency, or other joint venture relationship between Client and CHI.
13.11. Agency. If Client is an agent and/or agency, Client shall disclose Client’s principal(s) to CHI and to Creator and by such disclosure warrant Client’s authority to bind Client’s principal(s) to all of the terms and conditions of this Agreement. Client and Client’s principal(s) shall be jointly and severally liable for all payments of account balances due to CHI and/or Creator, and for all representations, warranties, indemnification and other obligations made by the other under this Agreement.
13.12. Force Majeure. Other than for its payment obligations, neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement (except for payment obligations) if such failure is caused by acts of nature, war, strikes, Internet outage or performance problems, computer viruses, hackers, terrorism, lack or failure of transportation facilities, changes to laws or governmental regulations, or other causes which are beyond the reasonable control of such party.
13.13. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire agreement of the parties as to the subject matter covered herein and supersedes all prior oral or written agreements, proposals, understandings, representations, conditions and promises relating thereto and any shrink-wrap, click license or web-posted terms and conditions (whether made available before, on or after the date hereof). In the event of a conflict between the terms and conditions of this Agreement (without exhibits) and the terms of the exhibits, the terms and conditions of this Agreement (without exhibits) shall govern. This Agreement may not be modified or amended except by a written instrument referring to this Agreement and signed on behalf of both parties.
13.16. Exhibits. Exhibits A and B described below and are incorporated into this Agreement wherever referenced.
Exhibit A Production Services Agreement
Exhibit B Statement of Work
13.17. Survival. Sections 1.8, 1.9, 4, 7, 8, 9, 10, 11 and 12 shall survive any termination or expiration of this Agreement.