PROLIFIC WRITERS CONTRACT FOR HOSTING SERVICES
THIS AGREEMENT is made between Prolific Writers, LLC (“PW”) a California Limited Liability Company, and “Contractor-Host”.
WHEREAS, PW provides an online community through its Website, https://prolificwriters.life, wherein it assists writers in expanding, improving and enhancing their creativity, possibilities and perspective.
WHEREAS, Contractor-Host has and utilizes experience, education, writing tools and skills that benefit writers seeking to achieve success with their writing projects.
WHEREAS, PW desires to retain the services of the Contractor-Host to perform the services stated herein and according to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and conditions contained in this Agreement, the parties agree as follows:
- Term and Contract. This Agreement shall become effective on the date stated above and will continue in effect for a period of One (1) year pursuant to this Agreement.
- Duties and Obligations of Contractor-Host. Contractor-Host agrees to provide and present services and/or products in the form of curriculum, audio books, book clubs, branding coaching creative strategies, critique, study groups and writing techniques. Contractor-Host will determine the method, details and means of performing the above-described services. Contractor-Host shall perform the above-described services on PW’s Website.
- Status of Contractor. Contractor-Host enters into this Agreement as, and will remain throughout the term of this Agreement, an independent contractor. Contractor-Host agrees that they are not and will not become an employee, partner, agent, or principal of PW while this Agreement is in effect. Contractor-Host agrees that she is not entitled to the rights or benefits afforded to PW employees, including disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, or any other employment benefit. Contractor-Host is responsible for providing, at his or her own expense, disability, unemployment, and other insurance, workers’ compensation, training, permits and licenses for himself or herself and for his or her subcontractors.
- Payment of Income Taxes. Contractor-Host is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation received from PW for services under this Agreement.
- Compensation. In consideration for the services to be performed by Contractor-Host, PW agrees to pay Contractor-Host eighty percent (80%) of Contactor-Host income derived from his or her services or product sale. PW shall retain twenty percent (20%) of the gross Contractor-Host income. As additional consideration for this agreement PW agrees to provide Contractor-Host with promotion, payment processing services, financial statements, and marketing services.
- Date For Payment of Compensation. For services rendered under this Agreement, PW agrees to pay Contractor-Host the compensation set forth in paragraph 5 above each week when services have been provided by the Contractor-Host.
- Payment of Expenses. Contractor-Host will be responsible for all expenses incurred in performing Contractor-Host’s services under this Agreement.
- Nonexclusive Relationship. Contractor-Host may perform services for, and contract with as many additional clients, persons or companies as Contractor-Host, in his or her sole discretion, sees fit.
- Intellectual Property. It is understood and agreed that PW and Contractor-Host each own certain proprietary-Confidential Information. The parties agree to execute a Nondisclosure Agreement in the form of Exhibit A hereto as a precondition to this Agreement.
- No breach of other agreements. Contractor-Host represents that its performance under this Agreement does not and will not breach any agreement to keep in confidence third party proprietary information, knowledge or data acquired by Contractor-Host in confidence or in trust prior to this Agreement, and Contractor-Host will not disclose to PW or its users, such third party proprietary information previously obtained or received. Contractor-Host agrees not to enter into any agreement either written or oral in conflict with the provisions of this Agreement. Contractor-Host certifies that, to the best of its information and belief, it is not a party to any other agreement which will interfere with its full compliance with this Agreement.
- Termination For Default. A default of this Agreement shall be defined as either party’s failure to comply with or perform any provision of this Agreement. In the event of a default, the non-defaulting party may terminate this Agreement and pursue all legal remedies available, subject to compliance first with provision 12 below.
- Mediation. PW and Contractor-Host agree to and shall mediate any dispute or claim between them arising out of this Agreement. The mediation shall be held prior to either party filing a lawsuit to enforce this Agreement or any rights related thereto. The mediation shall be confidential and under California Evidence Code 1152, et seq. The parties agree to use a member of JAMS (San Jose) as mediator.
- Indemnification Agreement. PW agrees to indemnify, defend and save harmless Contractor-Host from any and all claims, actions and suits, whether groundless or otherwise, by any third party, and against any and all liabilities, judgments, losses, damages, costs, charges, attorneys’ fees and other expenses of every nature and character by reason of or in any way related to PW’s means or method of doing business, including any contract or obligation entered into as part of such business or any claim under the Sherman Antitrust Act, the Cartwright Act or other anticompetitive claim or any unfair business practice.
Contractor-Host agrees to indemnify, defend and save harmless PW from any and all claims, actions and suits, whether groundless or otherwise, by any third party, including but not limited to any entity or individual acting on behalf of itself or Contractor-Host from and against any and all liabilities, judgment, losses, damages, costs, charges, attorney’s fees or other expenses of any nature and character by reason of or in any way related to Contractor-Host’s means or method of doing business pursuant to this contract.
- Survival of Certain Provisions. The provisions of paragraphs 5, 10, 12 and 13 shall survive the termination of this Agreement.
- Governing Law. This Agreement and the rights and obligations hereunder shall be governed by the laws of California. Venue for any legal action will be in Santa Clara County Superior Court.
- Partial Invalidity. If any term, provision or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent possible permitted by law.
- No Warranty. In executing and delivering this Agreement, Contractor-Host has not relied on any representations that PW is furnishing, at all, on the same level or on the same basis, or any warranty or any statement of PW which is not set forth herein or in one or more of the exhibits attached hereto.
- Authority. If Contractor-Host is a corporation, trust or partnership, each individual executing this Agreement on behalf of Contractor-Host hereby represents and warrants that Contractor-Host is a duly formed and existing entity qualified to do business in California and that Contractor-Host has full right and authority to execute and deliver this Agreement and that each person signing on behalf of Contractor-Host is authorized to do so.
- Attorneys’ Fees. In the event that either PW or Contractor-Host should bring suit for the recovery of any sum, or because of the breach of any provision of this Agreement or for any other relief against the other, then all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party therein shall be paid by the other party, which obligation on the part of the other party shall be deemed to have accrued on the date of the commencement of such action and shall be enforceable whether or not the action is prosecuted to judgment.
- Independent Covenants. This Agreement shall be construed as though the covenants herein between PW and Contractor-Host are independent and not dependent and Contractor-Host hereby expressly waives the benefit of any statute to the contrary and agrees that if PW fails to perform its obligations set forth herein.
- Counterparts. This Agreement may be executed in counterparts with the same effect as if both parties hereto had executed the same document. Both counterparts shall be construed together and shall constitute a single Agreement.
- No Violation. Contractor-Host hereby warrants and represents that neither its execution of nor performance under this Agreement shall cause it to be in violation of any agreement, instrument, contract, law, rule or regulation by which it is bound, and Contractor-Host shall protect, defend, indemnify and hold PW harmless against any claims, demands, losses, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising from ‘ Contractor-Host s breach of this warranty and representation.
- No Discrimination. There shall be no discrimination against, or segregation of, any person or persons on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the performance of the is Agreement, nor shall Contractor-Host itself, nor any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, or use of its services or product.
- Waiver. The parties hereto shall not be deemed to have waived any of their respective rights under this Agreement unless the waiver is in writing and signed by the waiving party. No delay in exercising any rights shall be a waiver nor shall a waiver on one occasion operate as a waiver of such right on a future occasion.
- Notice. All notices, requests, demands and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been fully given if delivered personally or mailed, first class mail, postage prepaid, return receipt requested, or by telefax as follows:
- If to the Contractor-Host:
- If to PW
or to such other address as either party shall identify by notice in writing to the other party. All such notices, requests, demands or communications shall be deemed to have been received on the date of delivery or on the third business day after mailing thereof.
- Entire Agreement of the Parties. This Agreement supersedes any and all agreements, either oral or written, between the parties with respect to the rendering of services by Contractor-Host for PW and contains all of the representations, covenants, and agreements between the parties with respect to the rendering of those services. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement will be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by the party to be charged.
This Nondisclosure Agreement (the “Agreement”) is made as of June __, 2020 by and, between Prolific Writers, LLC (“PW”) a California Limited Liability Company, and (“Contractor-Host”) as a part of the contract for services between the parties.
- Purpose. The parties agree the term “Proprietary “or “Confidential Information” means information pertaining to any aspects of PW’s business and PW’s proprietary information, whether of a technical, content, video, images, financial, or design nature or otherwise. CH agrees that all information provided by or received from PW is Proprietary/ Confidential to PW and is not to be disclosed, reproduced, shared or otherwise compromised to any individual, entity or company for any reason without the express written consent of PW. CH is granted a limited license only, subject to the restrictions provided herein for PW’s Proprietary -Confidential Information and /or for purposes of viewing the Website material and providing the Contractor-Host services and product.
(a) CH’s Content. “CH’s Content” shall mean any audio, video, text, images or other material CH chooses to use or display on PW’s Website and/or as a part of services provided under the Contractor-Host Services. With respect to CH’s Content, by displaying it, CH grants PW and its users a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.
- Nondisclosure of Confidential Information.
(a) Nondisclosure. Contractor-Host and any of his or her agents, principals employees, contractors, attorneys, directors, officers, employees or consultants will not use any Confidential Information disclosed to him or her by PW for his or her own use or for any unlawful purpose. CH shall not disclose or permit disclosure of any Confidential Information to third parties unless in performance of the Contractor for Hosting Services. CH shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. CH shall notify PW in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information which may come to CH’s attention.
(b) Exceptions. Notwithstanding the above, CH shall not have liability to PW with regard to any Confidential Information which he or she can prove:
(i) is disclosed with the prior written approval of PW;
(ii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that CH shall provide prompt notice of such court order or requirement to PW to enable PW to seek a protective order or otherwise prevent or restrict such disclosure.
- No Publicity. CH shall not, without the prior written consent of PW, disclose to any other person the fact that Confidential Information has been and/or may be disclosed under this Agreement, except as required by law and then only with prior notice as soon as possible to PW.
- No Duplication; Return of Materials. Except as otherwise expressly authorized by PW, CH shall not make any copies or duplicates of any Confidential Information.
- Term. The foregoing commitments of each party shall continue for two years following the date of the termination of the Contract-Host Agreement.
- Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, provided that PW’s Confidential Information may not be assigned without the prior written consent of PW. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
- Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
- Remedies; Indemnification. PW and CH each acknowledge that the obligations of CH set forth in this Agreement are necessary and reasonable in order to protect PW and its business. PW and CH each expressly agree that due to the unique nature of the Confidential Information, monetary damages may be inadequate to compensate PW for any breach by CH of its covenants and agreements set forth in this Agreement. Accordingly, PW and CH each acknowledge that any such violation or threatened violation shall cause irreparable injury to PW and that, in addition to any other remedies that may be available, in law under this agreement, in equity or otherwise, PW shall be entitled (a) to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by CH, without the necessity of proving actual damages, and (b) to be indemnified by CH from any loss or harm, including but not limited to attorney’s fees, arising out of or in connection with any breach or enforcement of CH’s obligations under this Agreement or the unauthorized use or disclosure of the Confidential Information.
- Amendment and Waiver. Any term of this Agreement may be amended with the written consent of CH and PW. Any amendment or waiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any provision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.
- Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Fax copies and electronically scanned copies of the executed signature pages of this Agreement shall be effective and binding upon the parties as if such signatures were original signatures.
- Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. There are no other written on oral agreements or understandings between the parties. Neither party may rely on any oral statement of the other party as a basis for contract by estoppel or otherwise with respect to any matter, and, except as otherwise expressly provided herein, neither party shall have any obligation to the other party unless and until a written agreement is entered into between the parties with respect to any such matter.