Post Clips
This Independent Contractor Agreement (this "Agreement") is made and entered into on the day of Contractor's signature ("Effective Date"), by and between Post Clips Corp, (the "Company"), and the undersigned (the "Contractor"), and sets forth the terms and conditions whereby Contractor agrees to provide certain services (as described in the hereto attached Exhibit A) to Company. The Company and Contractor are individually referred to as "Party" and collectively referred to as the "Parties".
Company hereby engages Contractor, and Contractor hereby accepts such engagement, as an independent contractor to provide certain services to the Company, (as set forth on the Exhibit A) annexed hereto and as otherwise requested by the Company from time to time (the "Services"), on the terms and conditions set forth in this Agreement.
The Company shall not control the manner or means by which Contractor or Contractor's employees perform the Services, including but not limited to the time and place Services are performed.
Contractor shall furnish, at Contractor's own expense, the equipment, supplies, and other materials used to perform the Services. Contractor shall be solely responsible for any and all costs and expenses incurred by Contractor to perform its obligations under this Agreement, including, but not limited to, travel expenses and telephone expenses. If there are any costs or expenses that are agreed upon in writing by the Company as reimbursable, the Company will reimburse the Contractor within thirty (30) days after receiving an itemized expense statement from the Contractor with appropriate receipts for the agreed upon costs or expenses.
The term of this Agreement shall commence on the Effective Date first set forth above and shall continue until terminated in accordance with Section 12 (the "Term"). If during the Term, any account or page on which Contractor posts any Deliverables (as defined below) sees an increase in followers of twenty-five percent (25%) or more (the "Value Increase"), the Term of the Agreement will then be one (1) year from the date of the Value Increase (the "Locked Term"), and during such Locked Term this Agreement may only be terminated without cause by Company, or in accordance with Section 12.
3.1 As full compensation for the Services and the rights granted to the Company in this Agreement, the Company shall pay Contractor on a pay-per view rate (the "Rate") based on the views delivered per month (the "Fees"). The Rate shall be determined on a per Campaign basis as set forth in Exhibit A and is subject to adjustment at any time during the Term, at Company's sole discretion, with thirty (30) days' notice to Contractor. Contractor shall be paid through the App (as defined in Exhibit A) on the second and last Friday's of each calendar month in which Contractor views have totaled a minimum of Fifty dollars ($50USD). Any delay in payments due to App or banking malfunction shall not be a breach by Company. Company reserves the right to change the payment schedule at any time, in Company's sole discretion, upon notice to Contractor. In the event of any disputes, the Parties shall negotiate in good faith the resolution of any disputed Fees, and payment of resolved Fees shall be made by the Company within thirty (30) days of such resolution. Contractor acknowledges that Contractor shall be solely responsible for all federal, state, and local taxes, as set forth in Section 4.2.
3.2 In order to be fully compliant with the Company's finance requirements, Contractor must provide the following:
Contractor acknowledges that any delay or incorrect information provided in any of the above required documentation, including any Invoice, may cause a delay in payment. Contractor may correct the error at any time but acknowledges that any delay in payment will not be considered a breach by Company.
4.1 Contractor is an independent contractor of the Company, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between Contractor and the Company for any purpose. Contractor has no authority (and shall not hold their self out as having authority) to bind the Company and Contractor shall not make any agreements or representations on the Company's behalf without the Company's prior written consent.
4.2 Without limiting Section 4.1, Contractor shall not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing, or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers' compensation insurance on Contractor's behalf. Contractor shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any contractor personnel engaged by Contractor ("Contractor Personnel") in connection with the performance of the Services shall be Contractor's employee or contractor and Contractor shall be fully responsible for them and indemnify the Company against any claims made by or on behalf of any such employee or contractor.
5.1 Contractor understands and agrees that all the results and proceeds of the Services performed under this Agreement, including but not limited to any and all deliverables conceived of or developed in connection with the performance of the Services Contractor provides (collectively, the "Deliverables") are the sole and exclusive property of a third party content owner that has entered into an agreement with the Company (a "Network"). Network, therefore, owns all right, title and interest throughout the world, in any and all media now known or hereafter devised in its provided content, and any clips, derivatives works, alterations or cuts downs that Contractor makes therefrom. The Company is and will be, the sole and exclusive owner of all right, title and interest throughout the world in any and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of Contractor performing the Services or other work performed in connection with the Services or this Agreement ("Work Product"), including all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information and other intellectual property rights (collectively "Intellectual Property Rights") therein. Contractor agrees that the Work Product and Deliverables are hereby deemed a "work made for hire" as defined in 17 U.S.C. § 101 for the Company and/or any applicable Network, and all copyrights therein automatically and immediately vest in the Company and/or any applicable Network. If, for any reason, any Work Product or Deliverables do not constitute a "work made for hire," Contractor hereby irrevocably assigns to the Company and any applicable Network, for no additional consideration, Contractor's entire right, title, and interest throughout the world in and to such Work Product and/or Deliverables, including all Intellectual Property Rights therein and also including the right to sue for past, present, and future infringement, misappropriation, or dilution thereof.
5.2 To the extent any copyrights are assigned under Section 5.1, Contractor hereby irrevocably waives in favor of the Company and any applicable Network, to the extent permitted by applicable law, any and all claims Contractor may now or hereafter have in any jurisdiction to all rights of paternity or attribution, integrity, disclosure, and withdrawal and any other rights that may be known as "moral rights" in relation to all Work Product and Deliverables to which the assigned copyrights apply.
5.3 Contractor shall make full and prompt written disclosure to the Company of any inventions or processes, as such terms are defined in 35 U.S.C. § 100, that constitute Work Product, whether or not such inventions or processes are patentable or protected as trade secrets. Contractor shall not disclose to any third party the nature or details of any such inventions or processes without the prior written consent of the Company. Any patent application for or application for registration of any Intellectual Property Rights in any Work Product that Contractor may file during the Term or any time thereafter will belong to the Company, and Contractor hereby assigns to the Company, for no additional consideration, Contractor's entire right, title, and interest in and to such application, all Intellectual Property Rights disclosed or claimed therein, and any patent or registration issuing or resulting therefrom.
5.4 Upon the request of the Company, during and after the Term, Contractor shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, and provide such further cooperation, as may be necessary to assist the Company to apply for, prosecute, register, maintain, perfect, record or enforce its rights in any Work Product, all Intellectual Property Rights therein, or any Network rights in any Deliverables. In the event the Company is unable, after reasonable effort, to obtain Contractor's signature on any such documents, Contractor hereby irrevocably designates and appoints the Company as Contractor's agent and attorney-in-fact, to act for and on Contractor's behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other intellectual property protection related to the Work Product, or Deliverables with the same legal force and effect as if Contractor had executed them. Contractor agrees that this power of attorney is coupled with an interest.
5.5 Notwithstanding Section 5.1, to the extent that any of Contractor's preexisting materials are incorporated in or combined with any Deliverable or otherwise necessary for the use or exploitation of any Work Product, Contractor hereby grants to the Company an irrevocable, worldwide, perpetual, royalty-free, non-exclusive license to use, publish, reproduce, perform, display, distribute copies of, and prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such preexisting materials and derivative works thereof. The Company may assign, transfer and sublicense (through multiple tiers) such rights to others without Contractor's approval.
5.6 As between Contractor and the Company, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to Contractor by the Company ("Company Materials"), including all Intellectual Property Rights therein. Contractor has no right or license to use, publish, reproduce, prepare derivative works based upon, distribute, perform, or display any Company Materials except solely during the Term to the extent necessary to perform Contractor's obligations under this Agreement. All other rights in and to the Company Materials are expressly reserved by the Company. Contractor has no right or license to use the Company's trademarks, service marks, trade names, logos, symbols, or brand names.
5.7 Contractor shall require each of their Contractor Personnel to execute written agreements containing obligations of confidentiality and non-use and assignment of inventions and other Work Product consistent with the provisions of this Section 5 and Section 8 prior to such Contractor Personnel providing any Services under this Agreement.
5.8 Contractor shall retain ownership of any and all accounts, channels or pages, on which Contractor or Contractor Personnel posts any Deliverables or other Company Work Product, subject to the terms and requirements of Section 12 below. This provision applies to accounts, channels or pages in existence prior to the execution of this Agreement, or those created with the specific purpose to perform Contractor's obligations hereunder.
During the Term, Contractor shall adhere to all directions that Company shall provide. Contractor shall delete any Deliverables or posts that include Work Product upon Company request within twenty-four (24) hours, and any request shall be at Company's sole discretion. Contractor shall update any and all accounts or pages associated with Company with updated and correct branding upon notice from Company. Contractor shall at all times govern Contractor's conduct to be aligned with social conventions and public morals and decency. Contractor shall not comment or make any obscene, insulting or otherwise inappropriate statements on Contractor's own posts, Deliverables, any other public or social media forum (including any private message to another user). Contractor shall not use the account for any criminal activity including harassment, hate speech, cyber bullying, or any other conduct that may have a negative effect on Company, and as determined at Company's sole discretion. Under no circumstances shall Contractor at any time, artificially, fraudulently, intentionally, recklessly, unfairly or deceptively exaggerate, inflate or otherwise affect the size of the view count on any Deliverable or post. Any such action taken by Contractor shall be a material breach of this Agreement that cannot be cured, and Company shall have the right to take any and all legal action available to it in the event of such breach. All account pages will be maintained as "Unofficial Fan Page" and must never claim to be a direct representative of any brand or impersonate any individual, private or public figure.
Company may, at Company's sole discretion, require and request an audit or proof of quality assurance. Such action will include, but not be limited to, requiring access to the direct messages and monetization status of any page or account associated and/or hosting Company Deliverables or Work Product. In the event such audit is requested, Contractor must comply within twenty-four (24) hours.
8.1 Contractor acknowledges that Contractor will have access to information that is treated as confidential and proprietary by the Company, including, without limitation, the existence and terms of this Agreement, trade secrets, technology, and information pertaining to business operations and strategies, customers, pricing, marketing, finances, sourcing, personnel, or operations of the Company, its affiliates, or their suppliers, or customers (including Networks), in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the "Confidential Information"). Any Confidential Information that Contractor develops in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this Section 8. Contractor agrees to treat, and cause all Contractor Personnel to treat, all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Contractor shall notify the Company immediately in the event Contractor becomes aware of any loss or disclosure of any Confidential Information.
8.2 Confidential Information shall not include information that:
8.3 Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Contractor agrees to provide written notice of any such order to an authorized officer of the Company within two (2) business days of Contractor's, or any Contractor Personnel, receiving such order, but in any event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek confidentiality protections, as determined in the Company's sole discretion.
8.4 Notice of Immunity Under the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement:
8.5 Conflict of Interest: The Parties agree that Contractor's services hereunder are non-exclusive in general, however in order to protect Company's Confidential Information and trade secrets, during the Term, and any Locked Term, Contractor agrees not to engage any company, brand or business as a client that would be a direct conflict of interest for Company. Such competing companies include, but are not limited to Clipping, Whop, Playbite Inc, Payper and any other company which engages in similar business activities to that of Company ("Competitor"). To further protect Company's Confidential Information, Contractor hereby agrees that any and all pages or accounts on which Contractor posts Company Work Product or Deliverables shall be exclusive to Company Work Product or Deliverables during the Term or any Locked Term, and no other content shall appear on the pages including for any Competitor. If Contractor chooses to convert a personal page or account, Contractor hereby agrees to archive or make private all existing content before posting any Company Work Product or Deliverables. No Contractor pages or accounts on which Company Work Product or Deliverable is posted may be monetized, including by brand deals, platform monetization, account sales or other money-or-gift-earning activities as these actions could create a conflict of interest for Company. All Company Work Product and Deliverables must be posted exclusively on accounts and pages associated with Company and no Company Work Product or Deliverable may be downloaded by Contractor, except with express written permission from Company. Under no circumstances shall any Company Work Product or Deliverable: (i) be downloaded by Contractor (even with permission); (ii) be screen recorded via any external camera or capture device; or (iii) be copied, transmitted or displayed, shared, posted or redistributed in any way on non-Company associated platforms. In order to protect Company's trade secrets and interests, the obligations of this Section 8.5 shall endure during the Term, any Locked Term and for a period of six (6) months thereafter or as allowed by law. Contractor understands and agrees that a breach of this Section 8.5 is a material breach of this Agreement.
9.1 Contractor represents and warrants to the Company that:
9.2 The Company hereby represents and warrants to Contractor that:
Contractor shall defend, indemnify, and hold harmless the Company and its affiliates and their officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys' fees) arising out of or resulting from:
During the Term, Contractor shall maintain in force adequate workers' compensation, commercial general liability, errors and omissions, and other forms of insurance, in each case with insurers reasonably acceptable to the Company, with policy limits sufficient to protect and indemnify the Company and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, controlling persons, and successors and assigns, from any losses resulting from Contractor's, or any Contractor Personnel's, conduct, acts, or omissions or the conduct, acts, or omissions of Contractor's agents, contractors, servants, or employees. The Company shall be listed as additional insured under such policy, and Contractor shall, upon the Company's written request, forward a certificate of insurance verifying such insurance upon the Company's written request, which certificate will indicate that such insurance policies may not be canceled before the expiration of a 30 calendar day notification period and that the Company will be immediately notified in writing of any such notice of termination.
12.1 Contractor or the Company may terminate this Agreement, for any reason or for no reason whatsoever, upon written notice to the other Party to this Agreement. Upon termination of this Agreement, Contractor shall submit a final Invoice to the Company and the Company shall pay any undisputed Fees owed in connection therewith as set forth in Section 3. Termination by Contractor shall not be effective unless and until it is provided in writing to Company, and all compliance with Section 12.2 below is effectively proven. Notwithstanding the foregoing, in the event of a Locked Term, Contractor understands that during such Locked Term, Company is the only Party that may terminate without cause.
12.2 Upon expiration or termination of this Agreement for any reason, or at any other time upon the Company's written request, Contractor shall promptly:
12.3 The terms and conditions of this Section and Section 4, Section 5, Section 6, Section 7, Section 8, Section 9, Section 10, Section 11, Section 15 and Section 16 shall survive the expiration or termination of this Agreement.
Contractor may be engaged or employed in any other business, trade, profession, or other activity which does not place Contractor in a conflict of interest with the Company; provided that during the Term and for a period of six (6) months thereafter or as allowable by law, Contractor shall not perform any services for any Competitors. If Contractor is uncertain as to whether a third party constitutes a direct competitor of the Company, Contractor shall inquire with the Company's president or such other person supervising the performance of the Services.
Contractor shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Company's prior written consent provided however that Contractor may, upon advance written notice to the Company, employ or engage Contractor Personnel to assist with Contractor's performance of the Services. Any assignment in violation of the foregoing shall be deemed null and void. The Company may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the Parties hereto and their respective successors and assigns.
This Agreement and all related documents including all schedules attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of California (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought only in any state or federal court located in the State of California. The Parties hereby irrevocably submit to the non-exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue. The Parties agree that any breach of this Agreement by Contractor shall cause Company irreparable injury and damages, the amount of which would be impossible to calculate. As such, the Parties agree that Company, in addition to all of Company's other rights and remedies at law or equity, may be entitled to seek injunctive and other equitable relief with first securing a bond. The Parties further agree that Contractor's sole remedy under this Agreement shall be an action in court for monetary damages and shall have no right to injunctive to relief.
16.1 Contractor shall not export, directly or indirectly, any technical data acquired from the Company, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
16.2 All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at such address that may be designated by the receiving Party in accordance with this Section. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving Party has received the Notice and (b) the Party giving the Notice has complied with the requirements of this Section.
16.3 This Agreement, together with any other documents incorporated herein by reference, and related exhibits and schedules, constitute the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
16.4 This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto, and any of the terms thereof may be waived only by a written document signed by each Party to this Agreement or, in the case of waiver, by the Party or Parties waiving compliance.
16.5 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.6 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all written and oral understandings and negotiations relating to the subject matter hereof. Any amendment of this Agreement is not valid unless in a writing and signed by a representative of both Parties. This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument.
16.7 This Agreement may be executed electronically. By checking the acceptance box(es) and clicking 'Accept & Continue' (or equivalent button) during the Post Clips app onboarding process, after having had reasonable notice of and opportunity to review this Agreement via hyperlinks, Contractor electronically executes this Agreement, manifests intent to be bound, and agrees to all terms herein. No handwritten, typed, or other formal signature is required.
This Exhibit A, (the "Exhibit") is attached to and made part of the Independent Contractor Agreement (the "Agreement") and is entered into between Post Clips Corp (the "Company"), and the Contractor as defined in the Agreement (the "Contractor") and further details the Contractor Services. Capitalized terms used herein shall have the meaning assigned to them in the Agreement.
The Post Clips App (the "App") is essential to Contractor's Services. Contractor will be required to create and maintain an active profile on the App. The App will be used for Contractor identification, performance of Services, performance tracking and payment processing. Network Campaigns (as defined below) will be uploaded to the App and accessed by Contractor through their profile. All Campaign specific details including, but not limited to, Campaign footage, Rate information and branding information will be provided through Contractor's access to the App.
By creating and maintaining Contractor's profile, Contractor will, at all times, be expected to agree to and be compliant with the App's Terms of Services and Privacy Policy, both of which are accessible at the time of Contractor's profile creation. Company reserves the right to update the Terms of Service and Privacy Policy as necessary with or without notice to Contractor.
The Company works on a marketplace model, and Network Campaigns (each a "Campaign") will be available on the App marketplace. Through the App profile, Contractor will be able to access and choose which Campaign for which they wish to create and post Deliverables. Submission workflow for all Deliverables and Contractor Services hereunder will occur entirely through Contractor's App profile. For avoidance of doubt, Contractor must use the App workflow in order to be correctly compensated for Deliverables and be compliant with the terms of this Agreement.
Each Contractor must adhere to the following Standard Services, which are subject to change at any time at Company's sole discretion.
If applicable, any difference in pay Rate, clip count or bonus structure, shall be set out in a separate schedule or in-App terms for each Campaign.