NOTE: YOU ARE CONCLUDING A LEGALLY BINDING AGREEMENT.
This consulting agreement (the “Agreement”), is entered into by Tempesta Media, LLC, a State of Indiana limited liability company located at P.O. Box 8816, 303 Washington Street, Michigan City, IN 46360 USA (the “Company”), and you, the writer (the “Consultant”). The Company desires to retain the services of the Consultant and the Consultant desires to perform certain services for the Company. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties agree as follows:
This Agreement shall commence upon the Consultant’s first login into TempestaMedia.com at tempestamedia.com (“Web Site”) and shall continue through the time period during which Consultant provides services, or until terminated in accordance with the provisions of Section 4 (“Consulting Period”).
A. Consulting Fees. The Company shall pay to the Consultant a fee, for writing services performed, at an assigned per word rate as determined by writing quality, per the Company’s sole and exclusive discretion, or as otherwise agreed to in writing between the parties. The Company shall pay to the Consultant amounts as shown within their article assignment payment logs on a monthly basis, without any deductions or contributions by the Company. A Consultant is under the obligation to deduct necessary amounts for withholding and taxes, including self-employment, and agrees to perform such obligation pursuant to the laws and regulations of the United States of America, the State in which any Services are performed, and their political subdivisions.
B. Reimbursement of Expenses. The Company shall NOT reimburse the Consultant for travel, lodging, meals, and other out-of-pocket expenses incurred or paid by the Consultant in connection with, or related to, the performance of his/her services under this Agreement. All other expenditures shall be the sole responsibility of the Consultant.
This Agreement may be terminated with or without cause by either the Company or the Consultant at any time by giving written notice of termination. The Company will pay Consultant for all Services performed by Consultant through the date of termination, unless the termination was a direct result of Consultant-submitted duplicate content, or other material breach of this Agreement. In such a case, all unpaid monies earned will be forfeited. The Company reserves the right to proceed with legal and/or civil action against the Consultant for such acts of plagiarism, or other breach.
Consultant agrees that all information, designs, applications, creative, content and other materials provided to Company in the course of providing the Services (“Content”) shall be solely owned by Company and that all Content created for Company under this Agreement constitutes “work-for-hire” as that term is defined in Section 101 of the Copyright Act, 17 U.S.C. Section 101, and is the sole and exclusive property of the Company. All right, title and interest in copyrights, trade secrets, trademarks, service marks, patents and other intellectual property derived in the Content developed hereunder, to the extent they are available, are the sole and exclusive property of Company, free from any claim or retention of rights thereto on the part of Consultant. In the event that the aforementioned rights are found not to be a “work-for-hire” or otherwise cannot be conferred to Company automatically, Consultant acknowledges that this Agreement will constitute an assignment of such rights in the Content and agrees to execute whatever documentation that may be necessary to formalise such assignment to Company. In no event shall Consultant claim any ownership rights in any software, hardware, process or plan developed by Company independent of the services. Consultant shall not publish the Content elsewhere or include the Content in Consultant’s portfolio.
A. Independent Parties. It is the express intention of the parties to this Agreement that the Consultant is an independent contractor, and is classified by the Company as such and is not an employee, agent, joint venture, or partner of the Company. Consultant shall have no authority to assume, create, or enlarge any obligation or commitment on behalf of the Company without the prior written consent of the Company. Nothing in this Agreement shall be interpreted or construed as creating or establishing an employment relationship, agency or joint venture between the Company and the Consultant. Consultant shall have authority and control over the method and performance of the Services contemplated herein. Both parties understand and agree that the Consultant may perform services for others during the term of this Agreement that does not conflict with Section 6 herein.
B. Non-Solicitation. During the Consulting Period and for a period of one (1) year thereafter, the Consultant will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or attempt to induce any employee of the Company to terminate his/her employment with, or otherwise cease his/her relationship with, the Company. Further, during the Consulting Period and for a period of one (1) year thereafter, the Consultant will not directly or indirectly recruit, solicit or otherwise communicate with any client of the Company for whom the Consultant has provided Services, or induce or attempt to induce any client of the Company to terminate its relationship with, or otherwise cease its relationship with, the Company.
C. Cooperation. The Consultant shall use his/her best efforts in the performance of his/her obligations under this Agreement. The Company shall provide such access to its relevant information as may be reasonably required in order to permit the Consultant to perform his/her obligations hereunder. The Consultant shall cooperate with the Company’s personnel, shall not interfere with the conduct of the Company’s business and shall observe all rules, regulations and security requirements of the Company concerning the safety of persons and property. Further, the Consultant agrees not to agree not to disparage or otherwise speak poorly or negatively of the Company or the Company’s clients, whether publicly or privately, related in any way to the Services or this Agreement, including the posting of any negative reviews on the internet forums or other social media, and shall not make any public comments about the Company or Company’s clients without the Company’s express written approval.
D. Confidential Information. Consultant understands that the Company possesses Confidential Information (as defined below) which is important to its business. Company may provide Consultant with access to this Confidential Information as necessary for Consultant to provide the Services. For purposes of this Agreement, “Confidential Information” is information that was or will be developed, created, or discovered by or on behalf of the Company, or is developed, created or discovered by Consultant while performing Services, or which became or will become known by, or was or is conveyed to the Company which has commercial value in the Company’s business. “Confidential Information” includes, but is not limited to, trade secrets, proprietary information, designs, technology, know-how, works of authorship, source and object code, algorithms, processes, data, computer programs, ideas, techniques, inventions (whether patentable or not), business and product development plans, customers, customer lists, content and other information concerning the Company’s actual or anticipated business, research or development, personnel information, terms of compensation and performance levels of Company employees, or information which is received in confidence by or for the Company from any other person. Confidential Information may be written, oral, expressed in electronic media or otherwise disclosed, and may be tangible or intangible. Consultant understands and agrees that this consulting relationship creates a relationship of confidence and trust between the Company and Consultant with respect to Confidential Information. At all times, both during the term of this Agreement and after its termination, Consultant will keep in the strictest confidence and trust, and will not use or disclose, any Confidential Information without the prior written consent of an officer of the Company, except as may be necessary in the ordinary course of performing the Services under this Agreement.
E. Consultant acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of Section 6 of this Agreement by Consultant. Therefore, in addition to all other remedies available at law, the Company shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and Consultant hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
Consultant hereby represents and warrants that: (a) Consultant shall not provide or place any Content that promotes, contains, or links to another site promoting or containing: (i) violence or hatred, (ii) criminal or illegal activities, (iii) sexually explicit or obscene material, (iv) discrimination based on race, color, sex, religion, nationality, disability, or age, or (v) material that infringes on trademark, copyright, patent or other proprietary rights of another person; (b) Consultant has sufficient legal authority and capacity to create legally binding obligations as set forth in this Agreement; (c) Consultant will perform its obligations and the Services under this Agreement in a timely, competent, and workmanlike manner in accordance with generally accepted professional standards; (d) Consultant’s execution, delivery and performance of this Agreement will not violate the terms of any agreement or understanding between Consultant and any third party; (e) all Content created or provided by Consultant under this Agreement are original works and do not infringe any trademark, copyright, trade secret or other proprietary or moral right of any third party; (f) Consultant shall comply with all applicable laws, rules, regulations and policies of the United States of America and other domestic and foreign jurisdictions; and, (g) Consultant has all necessary permits, licenses, and clearances to provide any content or other materials as provided herein.
Consultant shall indemnify and hold harmless Company, its parent, affiliated and subsidiary companies and their officers, directors, employees, agents and representatives, against any and all liabilities, judgments, damages, claims, causes of action, demands, costs, losses and expenses (including reasonable attorneys’ fees) arising out of or related to Consultant’s negligence and/or failure to perform in accordance with the terms of this Agreement.
A. Notices. Any notice, request, demand, or other communication required or permitted hereunder shall be in writing, by electronic mail (with proof of transmission), overnight mail or regular mail, postage prepaid, addressed to the party to be notified. All communication shall be deemed given 3 days after deposited in the U.S. mail or when received if sent by any other method. Notice shall be addressed to the other party at the address shown above, or at such other address or addresses as either party shall designate to the other in accordance with this Section 9.
C. Amendment. Company reserves the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.articledocument.com/terms_of_use, or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time per Section 4.
D. Governing Law. This Agreement shall be governed by the laws of the State of Indiana without reference to its choice of law rules. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in LaPorte County, Indiana, with respect to any claim, action or proceeding arising out of or in connection with this Agreement or the transactions contemplated hereby, and hereby agrees not to commence or prosecute any such claim, action or proceeding other than in the aforementioned courts. In the event any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, the prevailing Party shall recover all of such Party’s reasonable attorney’s fees and costs, including expert witness fees, incurred in each and every such action, suit or other proceeding, including any and all appeals, or petitions therefrom.
E. Successors and Assigns. This Agreement may not be assigned by the Consultant without the prior written consent of the Company.
F. Interpretation. The captions of the sections of this Agreement are for the convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement. In the event that any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, it shall be severed or altered to render it enforceable, and the remainder of the Agreement shall remain in full force and effect.
G. Waiver. No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
H. Survival. The following provisions shall survive the expiration or termination of this Agreement: 5, 6, 8, and 9.