ContentFly Inc d/b/a Draft (“Draft”) provides a content generation service through its website located at Draft.co (“Site,” and together with such service, including any updated or new features, functionality and technology, collectively the “Services”). This Agreement applies to anyone (“You”/”Writer”) who agrees to provide Content (as defined below).
By subscribing to provide Content through the Services as a Writer, you agree to these terms on the Effective Date. Please read them carefully as they set out the legal agreement between You, the Writer, and Draft.
THESE TERMS AND CONDITIONS (THE “AGREEMENT”) CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION ON YOUR LEGAL RIGHTS, REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, OBLIGATIONS AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES AND PROVIDING CONTENT. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST DRAFT TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DRAFT ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST DRAFT RESOLVED BY A JURY OR IN A COURT OF LAW. BY AGREEING TO BECOME A WRITER AND PROVIDE CONTENT THROUGH THE SERVICES, YOU AGREE TO THIS AGREEMENT HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE SERVICES OR PROVIDE ANY CONTENT.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Content” means the requested content made available to Draft by Writer.
“Effective Date” means the date the Writer signs up with the Services and agrees to provide Content.
“Fee” means the fees payable by Draft to Writer for each piece of Content;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; and
“Term” has the meaning ascribed to that term in Section 11.1.
2. Provision and Use of the Services.
2.1 Provision of Services.
Subject to the terms and conditions of this Agreement, Draft shall make the Services available to Writer for the purpose of Writer providing the Content during the Term. Writer’s right to use the Services during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in this Agreement as Draft may publish on the Site from time to time located at https://help.draft.co/en/articles/6295514-writer-agreement.
2.2 Writer Accounts.
Writer accounts are for use by the Writer only and cannot be shared or used by anyone else. Writer is responsible for maintaining the confidentiality of Writer’s account and password details, if any, and is fully responsible for any and all activities that occur under Writer’s account and password. If Writer chooses to register for the Services, Writer (a) agrees to undergo background checks as may be required by Draft, subject to the terms and conditions of this Agreement, and (b) will provide and maintain true, accurate, current, and complete information about Writer as prompted by the Writer accounts.
2.3 Background Checks.
Writer may be required to undergo one or more background checks in order to register with Draft or to access and use certain features of the Services, and Writer agrees that Draft may use any and all information Writer has provided to Draft for conducting such background checks, including providing such information to a third party Draft engages to conduct such background checks on Draft’s behalf. Writer agrees that as part of any background check, Draft may obtain information about Writer, including Writer’s criminal and driving records, and Writer agrees to provide any information or authorizations necessary to facilitate Draft’s access to such records. Writer hereby consents to the preparation of any background reports by a third party and the release of such reports to Draft and/or Draft’s designated representatives and agents, and to assist Draft in determining Writer’s eligibility to use the Services or to evaluate Writer’s continued compliance with this Agreement. To this end, Writer hereby authorizes, without reservation, any state or federal law enforcement agency or court, educational institution, motor vehicle record agency, credit bureau or other information service bureau or data repository, or employer to furnish any and all information regarding Writer to Draft and/or Draft’s designated representatives and agents, and Writer authorizes Draft’s representatives and agents to provide such information to Draft. All background reports will be obtained in compliance with the Fair Credit Reporting Act. A summary of rights under the Fair Credit Reporting Act may be found on the Consumer Financial Protection Bureau website at: http://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights-under-fcra.pdf.
2.4 Writer Responsibilities.
Writer is responsible for all activities that occur in its account and Writer’s compliance with this Agreement. Writer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Content and Services, and notify Draft promptly of any such unauthorized access or use; (iii) provide all Content in compliance with the requirements as set forth on the Site (including, without limitation, the timely submission of the Content); and (iv) comply with all applicable local, provincial, state, federal and foreign laws in providing the Content and using the Services.
2.5 Use Guidelines.
Writer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, creative derivative works of, or otherwise commercially exploit or make the Content or Services available to any third party (except that Writer may provide Content to Draft’s customer as directed by Draft); (ii) use the Content or Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Services to send or store, or provide Content that is, infringing, obscene, threatening, libelous, or otherwise unlawful or tortious, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Services to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (vi) incorporate into the Content any content, information or materials to which third parties have any rights, whether by patent, copyright, trade secret or otherwise (“Third Party Materials”), unless the Writer has express written permission to incorporate such Third Party Materials without any additional expense to Draft, and such express written permission must be (A) consistent with all rights granted to Draft under this Agreement, and (B) provided to Draft upon submission of the Content; or (vii) attempt to gain unauthorized access to the Services or its related systems or networks.
Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Draft may include the name and logo of Writer in lists of writers or vendors.
Writer shall not make any statements or references (orally, in writing, on social media, or otherwise) to any third party that disparage, ridicule, deprecate, condemn, criticize or malign Draft, the Services, the Content, or Draft’s business or operations.
Draft shall make available certain opportunities to write Content through the Services, which Writer can apply for. The Fees payable for such Content shall be specified through the Services. Writer shall be entitled to such Fee where (i) they apply to write such Content through the Services; (ii) that application is accepted; (iii) they provide the Content within the timelines specified; and (iv) such Content is accepted by the applicable end customer.
4. Invoicing and Payment.
Subject to the conditions in Section 3 having been satisfied in full, Writer may submit to Draft an invoice on a weekly basis for Fees specified in the applicable accepted application(s) in respect of the submitted Content. Such invoices shall typically be paid within 5 business days, but Draft is under no obligation to pay Fees related to any disputed invoice. Writer is responsible for maintaining complete and accurate billing and contact information with Draft.
5.1 Payments Through Draft. Writer acknowledges and agrees that Writer may be introduced to customers (“Customers”) of Draft in the course of providing the Content as a result of significant investment and effort by Draft. With respect to each Customer identified or to which Writer is connected via the Services, for the term of Writer’s connection or other relationship with such Customer in relation to the Services, and for 12 months thereafter (with respect to each such Customer, the “Non-Circumvention Period”), Writer agrees to use the Services as the Writer’s exclusive method to provide Content to such Customer and receive payments for work from such Customer. If Writer uses the Services as an employee, agent, or representative of an entity, then the Non-Circumvention Period and restrictions above apply with respect to such Writer and the other employees, agents, or representatives of such entity or its successor when acting in that capacity[GP1] . If Writer is aware of a breach or potential breach of this non-circumvention provision, Writer will submit a confidential report to Draft at [email protected].
5.2 Communication Through Draft. With respect to each Customer identified or to which Writer is connected via the Services, during the Non-Circumvention Period applicable to such Customer, Writer (i) will use the Services as the sole manner to communicate with such Customer; (ii) will not provide contact information (including any phone number, email address, physical address, social media handles, or other communication methods and tools) (hereinafter, “Contact Information”) of Writer to such Customer; (iii) will not use any Contact Information of such Customer to communicate with, solicit, contact, or find such Customer outside of the Services; (iv) will not ask for, provide, or attempt to identify through public means the Contact Information of such Customer; and (v) will not include any of Writer’s Contact Information or means by which any of Writer’s Contact Information could be discovered in Writer’s account, except as otherwise provided by Draft.
5.3 Breach of Non-Circumvention. Writer understands and agrees that if Draft, in its sole discretion, determines that Writer has violated this Section 5, Draft may, at its option, (i) terminate Writer’s account and/or suspend Writer’s use the Services, and/or (ii) charge Writer for all losses and costs (including any and all time of Draft’s internal workforce) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees. This Section 5 still applies if Writer chooses to cease using the Services and wishes to continue working with a Customer after Writer ceases using the Services. Writer agrees to notify Draft immediately if any person suggests making or receiving payments other than through the Services in violation of this Section 5 or if Writer receives unsolicited contact outside of the Services. Writer acknowledges and agrees that a violation of this Section 5 is a material breach of this Agreement.
6. OWNERSHIP RIGHTS.
6.1 Rights to Content.
The Writer hereby irrevocably assigns to Draft all rights, title and interest in and to the Content (including without limitation all writings, productions, and any and all other works created by the Writer using or in connection with the Services) and all intellectual property rights (including without limitation copyrights, trade secret rights and all other intellectual property or proprietary rights) relating thereto. Writer agrees never to assert copyright, proprietary rights, moral rights, or other claims to any Content, except for the right to be paid in accordance with this Agreement; and Writer waives and agrees never to assert any moral rights Writer may have in the Content, including, for example, any rights of attribution or integrity.
6.2 Rights to the Services.
Subject to the limited rights expressly granted hereunder, Draft reserves all rights, title and interest in and to the Services and Content, including all related intellectual property rights. No rights are granted to Writer hereunder other than as expressly set forth in this Agreement. Writer is permitted to access the Services solely for the purposes of Writer’s creation of Content hereunder.
Writer shall not (and shall not allow any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other timing or use restrictions that are built into the Services; (iii) remove any proprietary notices, labels, or marks from the Services; (iv) frame or mirror any content forming part of the Services; or (v) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services; or (vi) otherwise use the Services in violation of applicable law (including any export law) or outside the scope expressly permitted under this Agreement. Writer may not use any Content or any excerpt from any Content to promote its products or services. External citation to the Content is prohibited without Draft’s express written permission.
Draft shall have royalty-free , worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Services and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Writer or its Users relating to the Services.
6.5 Third-Party Services.
7.1 Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential and proprietary information of Draft disclosed to Writer, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Content, the Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Draft; (ii) was known to Writer prior to its disclosure by Draft without breach of any obligation owed to the Draft; (iii) was independently developed by Writer without breach of any obligation owed to Draft; or (iv) is received from a third party without breach of any obligation by Writer or such third party owed to Draft.
Writer shall not disclose or use any Confidential Information for any purpose outside the scope of this Agreement, except with Draft’s prior written permission.
Writer agrees to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure.
If Writer is compelled by law to disclose Confidential Information, it shall provide Draft with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Draft’s cost, if Draft wishes to contest the disclosure.
If Writer discloses or uses (or threatens to disclose or use) any Confidential Information in breach of confidentiality protections in this Agreement, Writer shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
8. WARRANTIES AND DISCLAIMERS.
Each party warrants that it has the legal power to enter into this Agreement. Writer represents, warrants and agrees: (i) to provide the Content in a professional and workmanlike manner; (ii) none of the Content or any part of this Agreement is or will be inconsistent with any obligation Writer may have to others; (iii) all Content under this Agreement will be Writer’s original work and human generated and none of the Content (nor any creation, reproduction, use, production, distribution or exploitation thereof) will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Writer); (iv) to the best of Writer’s knowledge, the Content is accurate; (v) the Content will not be scandalous, defamatory, slanderous, libelous, obscene, constitute an invasion of privacy, violate any other personal rights, or otherwise be unlawful; (vi) all information that Writer provides to Draft, including without limitation the information provided by Writer to Draft for conducting background checks, are complete, true and accurate; and (vii) Writer has the full right to allow it to provide Draft with the assigns and rights provided for herein.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DRAFT MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DRAFT FURTHER DISCLAIMS ALL WARRANTIES (I) THAT THE SERVICES PROVIDED WILL BE FREE FROM ERRORS, OMISSIONS, DEFECTS, OR DELAYS IN OPERATION, OR FROM TECHNICAL INACCURACIES OR OTHER ERRORS; (II) THAT THE SERVICES SHALL NOT INFRINGE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY; (III) THAT THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION.
9.1 Indemnification by Writer.
Writer shall, at its own expense, defend, indemnify and hold harmless Draft, its Affiliates and its and their directors, officers, employees and agents (the “Draft Indemnitees”) against losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) arising in connection with any action, suit or proceeding brought by a third party against any of the Draft Indemnitees alleging that (a) Content provided by the Writer infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party, or (b) Writer breached its warranties under Section 8.1 or any other term of this Agreement (“Writer Claims”). Draft shall notify Writer promptly in writing upon becoming aware of all pending Writer Claims; provided that Draft’s failure to do the foregoing will not limit Writer’s obligations except to the extent Writer is materially prejudiced hereby. Writer shall not settle any Writer Claims without Draft’s written consent, or compromise the defense of any such Writer Claims or make any admissions in respect thereto.
10. LIMITATION OF LIABILITY.
10.1 Limitation of Liability.
EXCLUDING DRAFT’S UNDISPUTED PAYMENT OBLIGATIONS TO WRITER, IN NO EVENT SHALL DRAFT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500 OR THE AMOUNTS ACTUALLY PAID TO WRITER HEREUNDER IN THE TWO MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
10.2 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL DRAFT HAVE ANY LIABILITY TO WRITER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT DRAFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM AND TERMINATION.
11.1 Term of Agreement.
This Agreement shall commence as of the Effective Date and shall continue in effect until terminated by either party (“Term”). Either party may terminate this Agreement without cause on not less than 1 days’ prior written notice, or by otherwise following any termination mechanism provided for within the Services.
11.2 Termination by Draft.
Writer agrees that Draft, in its sole discretion, may suspend or terminate Writer’s account or use of the Services and remove and discard any Content within the Services, for any reason, including for lack of use or if Draft believes that Writer has violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of Writer’s use of the Services, may be referred to appropriate law enforcement authorities. Draft may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. Writer agrees that any termination of Writer’s access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that Draft may immediately deactivate or delete Writer’s account and all related information and files in Writer’s account and/or bar any further access to such files or the Services. Further, Writer agrees that Draft will not be liable to Writer or any third party for any termination of Writer’s access to the Services.
11.3 Surviving Provisions.
The following provisions shall survive any termination or expiration of this Agreement: Sections 2.7, 2.8, and 5 through 13.
12. Dispute Resolution By Binding Arbitration.
12.1 Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this Agreement as the “Arbitration Agreement.” Writer agrees that any and all disputes or claims that have arisen or may arise between Writer and Draft, whether arising out of or relating to this Agreement (including any alleged breach thereof), Content, Services, or any aspect of the relationship or transactions between the parties, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Writer may assert individual claims in small claims court, if Writer’s claims qualify. Further, this Arbitration Agreement does not preclude Writer from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against Draft on Writer’s behalf. Writer agrees that, by entering into this Agreement, Writer and Draft are each waiving the right to a trial by jury or to participate in a class action. Writer’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
12.2 Prohibition of Class and Representative Actions and Non-Individualized Relief. WRITER AND DRAFT AGREE THAT EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH WRITER AND DRAFT AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
12.3 Pre-Arbitration Dispute Resolution. Draft is always interested in resolving disputes amicably and efficiently, and most Writer concerns can be resolved quickly and to the Writer’s satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Draft should be sent to [email protected] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Draft and Writer do not resolve the claim within sixty (60) calendar days after the Notice is received, Writer or Draft may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Draft or Writer will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Writer or Draft is entitled.
12.4 Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Draft and Writer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If Writer’s claim is for $10,000 or less, Draft agrees that Writer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Writer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
12.5 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Draft or Writer under the AAA Rules, Draft and Writer shall split them equally; provided that if Writer is able to demonstrate to the arbitrator that Writer is economically unable to pay Writer’s portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that Writer should not be required to pay Writer’s portion of any Arbitration Fees, Draft will pay Writer’s portion of such fees. In addition, if Writer demonstrates to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Draft will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
12.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
12.7 Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than Section 12.2 titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 12.2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.
12.8 Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, Draft agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while Writer is a user of the Services, Writer may reject any such change by sending Draft written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, Writer is agreeing that Writer will arbitrate any dispute between the parties in accordance with the language of this Arbitration Agreement as of the date Writer first accepted this Agreement (or accepted any subsequent changes to this Agreement).
13.1 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, sales representative or employment relationship between the parties. As such, Writer is solely responsible for the payment of all withholding taxes, social security, unemployment or disability insurance, benefits, or similar items relating to Writer’s compensation received under this Agreement, and Writer shall neither bind Draft to any third-party terms nor have no authority to make or accept any offers or representations on Draft’s behalf. Writer shall not subcontract others to provide any Content without written consent from Draft (in which case, Writer shall be responsible for the performance of such subcontractor and shall pass through all applicable restrictions and obligations of this Agreement). Writer agrees to comply with the Writer Policies that affect Writer’s services under this Agreement.
13.2 No Third-Party Beneficiaries.
Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Draft shall be addressed to the attention of the Legal Department. Notices to Writer shall be addressed to Writer’s signatory of this Agreement unless otherwise designated below.
13.4 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Writer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Draft (not to be unreasonably withheld). Any attempt by Writer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Draft may freely assign this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Governing Law.
This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
13.8 Venue; Waiver of Jury Trial.
The provincial and federal courts located in Toronto, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Writer acknowledges and agrees that the Services may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Writer shall comply with all export and import control regulations of such countries. Writer shall not use the Services for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Writer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Services.
13.10 Entire Agreement.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Writer purchase order or in any other Writer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.