This Writer Services Agreement is part of the Writer Contract (defined below) between the Writer and Scripted Inc. (“Scripted”), effective upon Writer’s acceptance of a Job on the Site. This Services Agreement incorporates all terms, conditions, rules, policies, and guidelines on the Site, including the Scripted Terms of Service. Capitalized terms not defined in this Services Agreement are defined in the Scripted Terms of Service.

This Services Agreement is effective as of July 22, 2014.

Writer Contract

Upon an extension of an offer to contract for a Job and Writer’s acceptance of a Job, Writer agrees to deliver the Writer Services in accordance with the following agreements (collectively, the “Writer Contract”): (1) the Terms of Service; (2) the Job Terms, as awarded and accepted on the Site; and (3) this Writer Services Agreement.

Responsibilities and Performance

Scripted shall make a final acceptance for satisfactory Writer Services in accordance with the Writer Contract in a timely and professional manner. Writer is responsible for the performance and quality of the Writer Services in accordance with the Writer Contract in a timely and professional manner, consistent with industry practice. The manner and means that Writer chooses to perform the Job are within Writer’s sole discretion and control. Writer shall have sole control over where, when and how the Writer Services are performed. In performing the Job, Writer agrees to provide its own equipment, tools, and other materials at its own expense. Scripted and Writer each covenant and agree to act with good faith and fair dealing in performance of the Writer Contract.

Duration of Services & Edits

The performance of the Writer Services under the Writer Contract commences and terminates on the dates specified in the Job Terms, unless both Writer and Scripted otherwise agree and Writer or Scripted edits the Job deadline on the Site.

A Writer assigned to a particular Job shall be entitled to perform edits to a Submission once, unless, in Scripted’s sole discretion, the submission cannot be used or if the Writer has had repeated failed edit attempts in the past. In the event that a piece is eligible for edits, the rejected first Submission shall be returned to the Writer with comments, edits or any remarks in order to allow a Writer to make a second Submission. If a Writer’s second Submission is rejected, Scripted is not obligated to review any additional Submissions from the Writer in connection with that Job.

Independent Contractor Relationship

Writer is: (a) not the agent of Scripted; (b) not authorized to make any representation, contract, or commitment on behalf of Scripted, including contacting Scripted Clients; (c) not entitled to any of the benefits that Scripted makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and waives the right to receive any such benefits); and (d) solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Writer’s performance of services and receipt of fees under the Writer Contract.

Writer has the right to be employed by, contract with or otherwise perform similar services for other individuals or entities (specifically including direct competitors of Scripted) during the term of this Agreement. In doing so, Writer shall not make use of, or disclose, directly or indirectly, any confidential or proprietary information of Scripted or its clients or Buyers. Writer shall have the right at all times to decline to provide services. Writer shall furnish and maintain at its expense all certifications, licenses, continuing education, equipment and materials used to provide the Services, including, but not limited to a telephone, computer equipment, and high-speed internet access. Writer is solely and exclusively liable for complying with all applicable state, federal and international laws, including laws governing self-employed individuals, and other contributions based on fees paid to Writer under the Writer Contract. Scripted will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Writer’s behalf. Writer hereby agrees to indemnify and defend Scripted against any and all such taxes or contributions, including penalties and interest. Upon execution of this Agreement, Writer shall provide a completed W-9 to Scripted and shall provide same for any year during which he or she is covered by any extension or renewal of this Agreement.

Intellectual Property Rights

As used in this Services Agreement, the following capitalized terms have the following meanings:

“Intellectual Property Rights” has the meaning given in the Terms of Service Agreement.

“Invention” means any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, artwork, formulae, other copyrightable works, and techniques and all Intellectual Property Rights therein.

“Submission” means any and all Submission developed by Writer as part of the Writer Services as required to complete the Job and delivered to Scripted.

Ownership of Job and Intellectual Property: Writer agrees that each Submission is a work made for hire. Upon Writer’s Submission of Job, any Intellectual Property Rights in the Submission will be the sole and exclusive property of Scripted, and Scripted will be deemed to be the author thereof. If Writer has any rights to such Intellectual Property Rights that are not owned by Scripted upon Writer’s Submission, Writer hereby automatically irrevocably assigns to Scripted all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, Writer retains no rights to use such Intellectual Property Rights and agrees not to challenge the validity of Scripted’s ownership in such Intellectual Property Rights. Writer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Submission.

License to or Waiver of Other Rights: If Writer has any right to such Intellectual Property Rights in the Submission that cannot be assigned by Writer, Writer hereby automatically upon receipt of payment from Scripted unconditionally and irrevocably grants to Scripted during the term of such rights, an exclusive, even as to Writer, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights.

Assistance: Writer agrees to assist Scripted in every way, both during and after the term of the Writer Contract, to obtain and enforce United States and foreign Intellectual Property Rights relating to Submission in all countries. Scripted will reimburse Writer for any out-of-pocket costs associated with such obtaining and enforcement. In the event Scripted is unable for any reason, after reasonable effort, to secure Writer’s signature on any document needed in connection with the actions specified above in this Section “Intellectual Property Rights,” Writer hereby designates and appoints Scripted and its duly authorized officers and agents as its agent and attorney in fact to act on its behalf to further the purposes of this Section with the same legal force and effect as if executed by Writer.

Specific Billing & Payment Policies for Writers

(1) How to Bill for Services Using the Payment Service

When an Assigned Writer makes a final Submission, such request is: (1) Writer’s representation that it has completed the applicable Writer Services fully and satisfactorily; and (2) Writer’s irrevocable instruction to Scripted to process a payment request in accordance with the Job terms.

(2) Partial Payment

Where a Writer, acting in good faith and with best efforts, makes a Submission on a Job and the Buyer rejects such Submission after making one previous attempt, Scripted agrees to compensate Writer for those services by paying Writer 50% of the identified rate for that Job. In the event that a submission needs to be reassigned, Writer may receive less than 50% of the identified rate for the Job. Scripted may also offer Writer a partial payment for a Submission if it determines that it is warranted by the circumstances. All such partial payments are determined in Scripted’s sole discretion and all such determinations are final and binding on Writers.

Writer can refuse such a partial payment based on a rejected Submission by notifying Scripted in writing within 5 days of such a rejection. If Writer exercises such a refusal then Writer will retain any Intellectual Property Rights in the Submission.

To the extent a Writer makes a Submission after the posted deadline, and such Submission is accepted by Scripted, Writer agrees that Scripted may apply, at its discretion, a late penalty between 5% – 50% of the posted rate for the Job.

(3) Withdrawal of Funds

See the Scripted Terms of Service for information on this point.

(4) Expenses

Scripted shall not be obligated to reimburse Writer for any expenses incurred while engaged in the performance of Services under this Agreement. Writer shall be solely responsible for all such expenses, including, but not limited to, the cost of equipment, materials, training, licenses, and insurance.

(5) Non Payment

Scripted shall not be obligated to pay Writer for a Submission or Job where, in Scripted’s sole discretion, such Submission or Job is rejected and/or is determined to be plagiarized or contains poor content.
Confidential Information

Writer agrees that during the term of the Writer Contract and thereafter, except as expressly authorized in writing by Scripted, Writer (a) will not use or permit the use of Confidential Information (as defined below) in any manner or for any purpose not expressly set forth in the Writer Contract; (b) will not disclose or publish any Confidential Information to any third party without first obtaining Scripted’s express written consent on a case-by-case basis; (c) will limit access to Confidential Information to Writer personnel who need to know such information in connection with their work for Scripted; and (d) will not remove any tangible embodiment of any Confidential Information from Scripted’s premises without Scripted’s prior written consent.

“Confidential Information” means all information related to Scripted and/or a Buyer’s business and its actual or anticipated research and development or related to a Submission delivered or agreed to be delivered from Writer to Scripted, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (iii) information designated by Scripted, either in writing or orally, as Confidential Information. Notwithstanding the foregoing, it is understood that Writer is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of the Writer Contract, and Writer’s own skill, knowledge, know-how, and experience. Confidential Information shall not include information that was known to Writer prior to Scripted’s disclosure hereunder or that becomes publicly available through no fault of Writer.

Writer Representations and Warranties

Writer hereby represents and warrants that (a) the Submission will be an original work of Writer and Writer will have executed assignment agreement(s) consistent with this Agreement prior to being allowed to participate in the development of the Submission; (b) the Submission will fully conform to the requirements and terms set forth on the Site and in the Writer Contract; (c) neither the Submission nor any element thereof will infringe or misappropriate the Intellectual Property Rights of any third party; (d) neither the Job nor any element thereof will be subject to any restrictions or to any mortgages, liens, pledges, security interests, or encumbrances; (e) Writer will not grant, directly or indirectly, any rights or interest whatsoever in the Submission to third parties; (f) Writer has full right and power to enter into and perform the Writer Contract without the consent of any third party; (g) Writer will comply with all laws and regulations applicable to Writer’s obligations under the Writer Contract; (h) Writer is solely responsible for the acquisition and payment of any and all third-party clearances, permissions, fees, and licenses that are necessary in connection with Writer Services including with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials; (i) Writer shall perform the services in a professional manner and all Submissions or Jobs shall use proper English spelling, proper grammar and punctuation and shall contain factually correct statements. , In addition, Writer will verify all facts in each Submission. Writer agrees that Writer will not hold himself, herself or itself out as being an employee of Scripted or its clients or buyers to any third party, including, but not limited to, any state unemployment agency. Writer agrees that he, she or it is an independent contractor with respect to all Services provided pursuant to this Agreement.

Indemnification

Writer will defend, indemnify, and hold harmless Scripted, its affiliates, licensees (in particular, any Buyers that contracted with Scripted for the Job concerning the Submission at issue), directors, employees, agents and advisors against any damage, cost, loss or expense arising from a claim, suit or proceeding brought against Scripted (i) alleging that any Submission that Writer delivers pursuant to the Writer Contract or the Job infringes upon any Intellectual Property Rights (provided, however, the infringement claim does not pertain to revisions to the Submission performed by Scripted or others); (ii) alleging that any Submission that Writer delivers pursuant to the Writer Contract misappropriates any trade secret, of any third party; [iii] any activity performed by Writer under this Agreement of in performance of the Services, or (iv) arising from Writer’s breach of the terms of this Agreement.

Termination

Termination with Cause. Either party has the right to terminate the Writer Contract in connection with a Job immediately in the event that the other party has materially breached the Writer Contract and fails to cure such breach within fifteen (15) days of receipt of notice sent by the non-breaching party, setting forth in reasonable detail the nature of the breach. Scripted may also terminate the Writer Contract immediately in its sole discretion in the event of an assigned Writer’s material breach of the Sections titled “Intellectual Property Rights,” “Writer Representations and Warranties,” and “Confidential Information.”

Return of Property. Upon termination of the Writer Contract or upon Scripted’s request at any other time, Writer will deliver to Scripted all of Scripted’s property together with all copies thereof, and any other material containing or disclosing any Confidential Information.

Survival. In addition to the provisions of the Terms of Service that will survive, the following provisions will survive termination of the Writer Contract: Sections titled “Intellectual Property Rights,” “Confidential Information,” “Writer Representations and Warranties,” “Indemnification,” “Return of Property,” “Survival,” “Exclusion and Limitations of Liability,” “Arbitration Agreement” and “General Provisions.”

Disclaimer of Warranties

OTHER THAN THE WARRANTIES EXPRESSLY STATED HEREIN OR IN THE TERMS OF SERVICE, SCRIPTED DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE.

Exclusions and Limitations Liability

IN NO EVENT SHALL SCRIPTED BE LIABLE TO WRITER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THE WRITER CONTRACT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL SCRIPTED BE LIABLE TO WRITER FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED FOR THE JOB, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, IN AN AMOUNT IN EXCESS OF THE AMOUNT THE SCRIPTED PAID TO THE WRITER THROUGH THE SITE DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.

Arbitration Agreement

(a) Writer and Scripted agree and acknowledge that they will utilize final and binding arbitration to resolve all disputes that may arise out of or relate to this Agreement, the Services and Writer’s relationship with Scripted, including retroactively requiring the use of arbitration for any dispute that may have arisen from the time that Writer began providing services to Scripted. Both Scripted and Writer agree that any claim, dispute, and/or controversy that either Writer may have against Scripted (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) or Scripted may have against Writer, arising from, related to, or having any relationship or connection whatsoever with Writer’s contract relationship with Scripted, including the classification of Writer as an independent contractor shall be submitted to and determined exclusively by binding arbitration. This Arbitration Agreement is governed by the Federal Arbitration Act, and Writer acknowledges that this Agreement evidences a transaction in commerce. Included within the scope of this Arbitration Agreement are all disputes, whether based on tort, contract, statute (including, but not limited to, any claims of discrimination and harassment, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation), equitable law, or otherwise (excluding workers compensation, state disability insurance and unemployment insurance claims). Claims may be brought before an administrative agency but only to the extent applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration. Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Agreement.

(b) The location of the arbitration proceeding shall be no more than 45 miles from the place where Writer last provided services for Scripted, unless each party to the arbitration agrees in writing otherwise. If Writer no longer resides in the general geographical vicinity where Writer last provided contract services for Scripted, the parties shall agree to a location of the arbitration within 45 miles of where the Writer resides. Claims in arbitration must be brought within the applicable statute of limitations period.

(c) In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. However, there will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement, the preceding sentence shall not be severable from this Agreement in any case in which the dispute to be arbitrated is brought as a class, collective or representative action. Although Writer will not be retaliated against, disciplined or threatened with discipline as a result of exercising Writer’s rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collective or representative action in any forum, Scripted may lawfully seek enforcement of this Agreement and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims. Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

(d) Resolution of the dispute shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis other than such controlling law. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. Awards shall include the arbitrator’s written reasoned opinion. Writer and Scripted understand and agree to this binding arbitration provision, and both Writer and Scripted give up our right to trial by jury of any claim Writer and Scripted may have against each other.

(e) The parties shall each bear their respective costs for legal representation at any such arbitration, except to the extent attorney’s fees are explicitly provided by law. The parties shall split any initial administrative fee charged by the Arbitrator, up to a maximum cost to Writer of two hundred fifty dollars (US$250.00). The cost of the arbitrator and court reporter, if any, shall initially be borne by Scripted; however, the Arbitrator shall have the discretion to award appropriate costs to the prevailing party, as provided by law, and/or to require the parties to split the costs associated with the arbitrator and/or court reporter.

(f) Except as stated in Paragraph M(c), if any term or provision, or portion of this Arbitration Agreement is declared void or unenforceable it shall be severed and the remainder of this Arbitration Agreement shall be enforceable.

WRITER’S SIGNATURE, ELECTRONIC OR OTHERWISE, INCLUDING THE ACCEPTANCE OF A JOB AND PERFORMANCE OF THE SERVICES, ATTESTS TO THE FACT THAT WRITER HAS READ, UNDERSTOOD, AND AGREED TO BE LEGALLY BOUND TO ALL OF THE ABOVE TERMS OF THE ARBITRATION AGREEMENT, SPECIFICALLY INCLUDING THE CLASS ACTION WAIVER.

General Provisions

Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of [NOTE: I would suggest either the state in which Scripted is incorporated or the state in which Writer performs the Services] without regard to its conflicts of law principles. Any controversy, claim or dispute arising out of or relating to this Agreement between Writer and Scripted (including their respective assignees, affiliates, attorneys and/or agents), or their relationship, either during the existence of the relationship or afterwards, shall be resolved solely and exclusively by the courts in such state.

Severability. If any provision of the Writer Contract is, for any reason, held to be invalid or unenforceable, the other provisions of the Writer Contract will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

No Assignment. The Writer Contract, and the party’s rights and obligations herein, may not be assigned or otherwise transferred by either party without the other’s prior written consent, and any attempted violation of the foregoing will be null and void. The terms of the Writer Contract will be binding upon assignees. Notwithstanding the foregoing, Scripted may, without the consent of Writer, assign any rights and obligations under the Writer Contract. Any permitted assignment of the Writer Contract shall be binding upon and enforceable by and against Scripted’s and Writer’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of the Writer Contract.

Notices. Each party must deliver all notices or other communications required or permitted under the Writer Contract to the other party at the contact information identified in these terms or elsewhere on the Site.

Injunctive Relief. Writer acknowledges that, because its services are personal and unique and because Writer will have access to Confidential Information of Scripted, any breach of the Writer Contract by Writer would cause irreparable injury to Scripted for which monetary damages may not be an adequate remedy and, therefore, will entitle Scripted to injunctive relief (including specific performance). The rights and remedies provided to each party in the Writer Contract are cumulative and in addition to any other rights and remedies available to such party at law or in equity.

Waiver. Any waiver or failure to enforce any provision of the Writer Contract on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Execution and Delivery; Binding Effect. The parties will evidence execution and delivery of the Writer Contract with the intention of becoming legally bound, by accepting the Terms of Service on the Site.

Entire Agreement. The Writer Contract is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to the Writer Contract, or any waiver of any rights under the Writer Contract, will be effective unless accepted by Writer and Scripted.

Contacting Us

If you have any questions or complaints regarding these Terms, please submit your questions or complaints via an email to contact@scripted.com and if you need an address use 797 Bryant Street, San Francisco, CA 94107.

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