CONTRACTOR OBLIGATIONS
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A. Services and Projects. Buyer agrees to purchase, and Seller agrees to deliver, the services (the “Services”) described in the project description of this Project on the Platform (the “Project”), as further adjusted in the Project message thread pertaining to the Project (the “Thread”). Such Services may include the development and delivery to Buyer of certain tangible and intangible materials (“Materials”). Seller will complete the Services and deliver the Materials in accordance with the specifications, and on the schedule, identified in a given Project. In the event that Buyer desires to make changes to a given Project during the term of this Agreement, Buyer will so notify Seller through the Thread, and both Parties shall agree in the Thread on necessary adjustments, if any, to the other terms of this Agreement required to accommodate such changes.
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B. Performance of Work. Except to the extent expressly set forth in this Agreement (including any Project), Seller will have sole discretion and control over Seller’s work and the manner in which the Services are performed, provided that the requirements of each Project are met and that all such work and Services will be performed in a professional, workmanlike manner. Seller will arrange the schedule or performance of the work and Services in compliance with the Project, and will handle all details and logistics of performance.
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C. Submission and Review. Buyer will promptly review all deliverables/Materials submitted by Seller to determine if they conform to the specifications of the applicable Project and with this Agreement. In the event that any deliverables/Materials do not conform to their specifications or do not comply with this Agreement, Buyer shall communicate the nature of such nonconformance to Seller and grant Seller the opportunity to cure the defect through re-submission, and Buyer will promptly review such re-submission. In the event that a deliverable/Material is re-submitted with the same or further defects, Buyer may terminate this Agreement for cause.
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D. Compliance. Seller agrees that in the performance of the Services it will comply with all Platform policies in effect and as may be updated from time to time, including but not limited to the Glimmer Covid-19 policy, available at [glimmer.io/home/covid-19-guidelines/].
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FEES AND PAYMENT
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A. Compensation. The amount and timing of compensation for the Services (the “Project Fee”) are stipulated in the description of the Project. Seller and its personnel will not be entitled to any other benefit from Buyer or anyone else in consideration of the Project performed by Seller hereunder.
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B. Payment through Glimmer. Unless a Party is terminated from the Platform by Glimmer, all payments made by Buyer to Seller in connection with this Agreement shall be made through the Platform, with applicable service fees.
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No Benefits; Responsibility for Taxes. Seller hereby acknowledges that (i) Buyer has no obligation to provide Seller (or any contractor, employee or agent of Seller, if applicable) with disability insurance, worker’s compensation, unemployment or other such insurance; (ii) Seller shall provide, at Seller’s expense, such insurance as is lawfully required; and (iii) Seller (and any contractor, employee or agent of Seller, if applicable) will have no right to participate in Buyer’s health insurance or other employee benefit plans. Buyer will not withhold nor make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Seller’s behalf. Seller understands that, as an independent contractor, Seller is solely and exclusively liable for complying with, and making all payments under, all applicable state, federal and international laws, including laws governing self-employed individuals if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Seller.
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CONFIDENTIAL INFORMATION, IP AND LIMITED NON-COMPETE.
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A. Definitions. The following capitalized terms have the following meanings:
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“Retained Materials” means all Materials owned or developed by Seller other than in the course of providing the Services to Buyer.
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“Third-Party Materials” means all Materials owned by a third-party that Seller provides to Buyer in the course of providing the Services.
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“Confidential Information” means all information related to Buyer’s business and prospects or related to a Work Product delivered or agreed to be delivered from Seller to Buyer, including without limitation (i) trade secrets, inventions, ideas, processes, computer 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; (iii) information regarding the skills and compensation of Buyer’s employees, contractors, and any other service providers; (iv) information designated by Buyer, either in writing or orally, as Confidential Information, and (v) all such information related to any third party that is disclosed to Buyer or to Seller during the course of Buyer’s business. Confidential Information shall not include information that was known to Seller prior to Buyer’s disclosure hereunder or that is or becomes publicly available through no fault of Seller.
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“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
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“Materials” means any processes, programs, improvements, works of authorship, discoveries, developments, designs, artwork, formulae, techniques, works eligible for copyright protection, and all Intellectual Property Rights therein.
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​“Work Product” means any and all work product that is either newly developed or previously developed and incorporated into Project by Seller as required to complete the Project and in the course of completing the Project, and that is delivered to the Buyer and accepted by the Buyer, excluding Retained Materials and Third-Party Materials.
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B. Ownership of Work Product and Intellectual Property. Seller agrees that the Work Product is work made for hire. If any Work Product does not qualify as work made for hire, Seller agrees that, the Work Product, including without limitation all Intellectual Property Rights in the Work Product, will be and hereby is assigned to Buyer. Except as set forth below, Seller retains no rights to use, and agrees not to challenge the validity of Buyer’s ownership in, such Intellectual Property Rights. Seller hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Work Product.
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C. License to or Waiver of Other Rights. If Seller has any right to the Work Product, including without limitation any Intellectual Property Right, that cannot be assigned to Buyer by Seller, Seller hereby automatically unconditionally and irrevocably grants to Buyer during the term of such rights, an exclusive, even as to Seller, irrevocable, perpetual, worldwide, fully paid and royalty-free license to such rights, with rights to sublicense through multiple levels of sublicensees, to reproduce, modify, adapt, make derivative works of, distribute, publicly perform, publicly display and otherwise exploit 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 for any purpose (including for use in merchandise, promotional materials and advertising). If Seller has any rights to such Work Product that cannot be assigned or licensed, Seller hereby automatically waives the enforcement of such rights, and all claims and causes of action of any kind against Buyer or related to Buyer’s customers, with respect to such rights, and agrees, at Buyer’s request and expense, to consent to and join in any action to enforce such rights. Seller further grants to Buyer the right to use Seller’s name, biographical information, and likeness in and in connection with the publication, advertising, and promotion of any Work Product, any content containing Work Product, and NowThis Media Group, LLC.
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D. Retained Materials and Third-Party Materials. Seller will disclose any Retained Materials or Third-Party Materials that Seller proposes to use or incorporate in connection with performance of its Services to Buyer. If Seller discloses no Retained Materials or Third-Party Materials, Seller warrants that it will not provide to Buyer or incorporate into any Work Product any Retained Materials or Third-Party Materials.
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I. Seller hereby automatically grants to Buyer a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and world-wide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, modify, adapt, make derivative works from, distribute, publicly perform, publicly display and otherwise exploit in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Retained Material for any purpose (including for use in merchandise, promotional materials and advertising) (a) provided to Buyer, or (b) which are incorporated into any Work Product.
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II. Seller shall be solely responsible for clearing all third-party rights in any Third-Party Materials. To the extent that Seller provides Buyer with any Third-Party Materials that have not been fully cleared, Seller shall (a) disclose to Buyer the license terms associated with such Third-Party Materials prior to any delivery of the Third-Party Materials to Buyer or the incorporation of the Third-Party Materials into any Work Product, and (b) if Buyer permits their use or incorporation under such terms, Seller shall (x) sub-license such Third-Party Materials to Buyer under such terms, or (y) procure for Buyer a direct license to such Third-Party Materials from their owner or licensor under such terms.
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E. Assistance. Seller agrees to assist Buyer in every way, including by signing any documents or instruments reasonably required, both during and after the term of this Agreement, to obtain and enforce Intellectual Property Rights relating to Work Product in all countries. In the event Buyer is unable, after reasonable effort, to secure Seller’s signature on any document needed in connection with the foregoing, Seller hereby designates and appoints Buyer 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 Seller.
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F. Confidential Information. Seller agrees that during the term of this Agreement and at all times thereafter, except as expressly authorized in writing by Buyer, Seller (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 this Agreement; (b) will not disclose or permit others to disclose any Confidential Information to any third party without first obtaining Buyer’s express written consent; and (c) will limit access to Confidential Information to Seller personnel and professional advisors who need to know such information in connection with their work for Buyer and are bound by duties of confidentiality at least as restrictive as those herein. Seller shall notify Buyer immediately in the event Seller becomes aware of any loss or disclosure of any Confidential Information.

WARRANTIES.
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Seller represents, warrants and covenants that:
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A. Seller will perform the Services under this Agreement in a professional and workmanlike manner in accordance with all applicable laws and regulations and the standards of the industry, and any Materials delivered or provided by Seller to Buyer will be and are of a high grade, nature and quality, and will and do conform with the specifications for such Materials as may be set forth in applicable Project.
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B. The Work Product will be an original work of Seller, or contain only fully cleared or authorized Retained Materials, and any permitted third parties will have executed assignment agreement(s) consistent with this Agreement prior to being allowed to participate in the development of the Work Product;
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C. Neither the Work Product nor any element thereof will infringe or misappropriate the Intellectual Property Rights or any other rights of any third party;
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D. Seller has full right and power to enter into and perform this Agreement without the consent of any third party; and
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E. Seller has sufficient right to grant the license to all Retained Materials that may be permitted to be incorporated into Work Product.
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INDEMNIFICATION. Seller will defend, indemnify, and hold harmless Buyer against any damage, cost, loss or expense (including reasonable attorneys’ fees) arising from a claim, suit or proceeding brought against Buyer (i) alleging that any Work Product infringes upon any Intellectual Property Rights, (ii) alleging that any Work Product misappropriates any trade secrets, of any third party, or (iii) arising from Seller’s breach of the terms of this Agreement. In addition, Seller will indemnify and hold harmless Buyer from any workmen’s compensation claim or unemployment insurance claim made by or on behalf of any Seller employee. Buyer will give prompt notice to Seller of any claim to which this paragraph relates.
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TERM
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A. Term and Termination. This Agreement will take effect on the Effective Date and will continue in force for as long as Seller is working on an Project for Buyer, unless earlier terminated as described herein.
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B. This Agreement, or (unless contradicted herein) may be terminated upon written notice by a terminating Party (i) by either Party in the event of any breach or default in the obligations of the other Party hereunder, which is not cured within thirty (30) days of notice to the other Party; (ii) by Buyer upon fifteen (15) business days’ notice, regardless of whether with or without cause; or (iii) due to the death or disability of Seller or a key employee thereof which in Buyer’s judgment prevents Seller from performing its obligations under this Agreement.
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C. Cancellation Fee. If this Agreement is terminated by Buyer without cause and: (i) prior to the bona fide commencement of the Project by Seller, Buyer shall have no liability to Seller for any Project Fee; (ii) after bona fide commencement and prior to 24-hours before the agreed upon final delivery date, or deadline, Buyer will owe Seller a cancellation fee (the “Cancellation Fee”) equal to 35% of the Project Fee; (c) after bona fide commencement and less than 24-hours before the agreed upon final delivery date, or deadline, Buyer will owe Seller a Cancellation Fee equal to 50% of the Project Fee; or (d) after deliverable/Materials are submitted in full, Buyer will owe Seller a Cancellation Fee equal to 85% the Project Fee and Seller shall retain all rights title and interest in and to the deliverables/Materials, and Sections 4B-4E of this Agreement shall have no force or effect.
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D. In the event that Glimmer terminates either Party from the Platform, this Agreement shall remain in full force and effect as between the Parties, and unless otherwise terminated by the Parties, the Parties shall continue operating in accordance in this Agreement, except that payments shall no longer be required to be made through the Platform.
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E. Termination will not affect obligations of either Party which have accrued prior to such termination (including payment obligation for accepted deliverables) or under Sections 3-7, and all obligations under this Agreement will be binding upon and enforceable for the benefit of Buyer, Seller, and their respective successors and assigns to the extent permitted herein. In the event Buyer terminates for cause before the deliverables are accepted, no Project Fee shall be owed. In the event of a breach or threatened breach of any provision of this Agreement, Buyer shall be entitled to injunctive relief restraining and enjoining Seller from violating any provision of this Agreement. Seller’s sole remedy for Buyer’s breach of this Agreement shall be for monetary damages, and in no event shall Seller be entitled to enjoin or otherwise restrain the use, distribution, production, exhibition, promotion, or exploitation of the Work Product or any derivative work thereof.
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GENERAL
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A. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York as such laws apply to contracts performed within New York by its residents. The Parties agree that New York County is the appropriate venue for any dispute arising from this Agreement.
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B. Independent Contractors; No Agency. Nothing in this Agreement should be construed as creating an agency, partnership, joint venture, franchise, or employment relationship between the parties. Neither Party will have the authority to make any statements, representations or commitments of any kind or to take any action binding on the other except to the extent (if any) expressly provided for in this Agreement. Buyer will not be liable for any personal or business expense of Seller, except to the extent (if any) expressly provided for in this Agreement, and Seller is prohibited from incurring any liabilities or expenses on behalf of Buyer except to the extent (if any) expressly provided for in this Agreement.
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C. Severability. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement (or any Exhibit or appendix to it) to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and provisions will remain in full force and effect.
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D. Project. Seller may not assign, subcontract, delegate or otherwise transfer this Agreement without Buyer’s prior written consent, whether through merger, change in control in stockholders or members, or otherwise. This Agreement shall be fully assignable by Buyer. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against Buyer’s and Seller’s successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
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E. Expenses. Each Party will bear its own expenses in the negotiation, formation and performance of its obligations under this Agreement.
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F. Notices. All notices, requests, consents, approvals, or authorizations in connection with this Agreement must be given in writing through the communications functionality of the Platform, and will be deemed given as of the day they are made through the Platform.
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G. Supremacy; Amendments. This Agreement and the Project constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to such subject matter (including with respect to the terms of Glimmer’s default Independent Contractor Services Agreement, which this Agreement shall replace and supersede). To the extent of any conflict between this Agreement and the Project, the Project shall control, except to the extent that there is any attempt to alter Section 2(B) of this Agreement, which shall be invalid and of no effect. This Agreement may not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Buyer and Seller by their respective duly authorized representatives, which may be done through the functionality on the Platform. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no such waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.
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H. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts on the Platform, by each Party completing the contract formation process for the Project on the Platform, all of which together shall constitute one and the same instrument. Each Party agrees that the electronic signatures, and the applicable clicks, are intended to authenticate this Agreement and are to have the same force and effect as manual signatures. “Electronic signature” means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile, clickwrap or e-mail electronic signatures.
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