THIS CONTRIBUTOR AGREEMENT (“Agreement”), effective as of the date submitted (the “Effective Date”), is entered into by and between Activehours, Inc., a Delaware corporation (doing business as “Earnin”) having a place of business at 260 Sheridan Ave., Suite 300, Palo Alto, California 94306, including its affiliates, subsidiaries, successors, and assigns (“Earnin”), and the undersigned (“Contributor”) (together, “Parties”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. PURPOSE. Earnin may from time to time engage Contributor to create or provide original works of authorship such as written articles, photographs, audio recordings, video recordings, graphic designs, images, illustrations, computer software or multi-media content (each, a “Work”) and to submit such Work to Earnin for Earnin’s use. The terms and conditions of this Agreement shall apply to each Work submitted by Contributor hereunder, regardless of whether this Agreement is specifically referenced upon submission of such Work.
2. RIGHTS IN WORK. Contributor and Earnin hereby agree that the Works shall be “works-made-for-hire” and, as such, that all right, title, and interest in and to the Works, including all copyrights, trademarks, and other intellectual property contained therein, shall be owned by Earnin throughout the world. To the extent that Earnin does not own or cannot own the Works as works-made-for-hire, Contributor hereby assigns to EARNIN all right, title, and interest in and to the Works, including all copyrights, trademarks, and other intellectual property rights contained therein, and Contributor agrees to promptly complete and sign any documentation to fulfill such assignment. If Contributor has any rights in the Works that cannot be assigned, Contributor agrees to waive enforcement of such rights against Earnin. If Contributor has any rights that cannot be assigned or waived, Contributor grants to Earnin, during the term of such rights, an exclusive, worldwide, perpetual, fully paid, and royalty-free license to use, reproduce, distribute, publish, republish, publicly display, transmit, and create derivative works of the Works by all means and media now known or hereafter developed with the right to sublicense such rights to third parties. Contributor hereby grants to Earnin the right and license to use Contributor’s name, voice, likeness, and biographical information, including photographs of Contributor, in connection with the exhibition, advertising, promotion, exploitation, marketing, and any other uses of the Works in any and all media in perpetuity worldwide.
3. SPECIFICATIONS, DELIVERY, ACCEPTANCE. For each Work, Earnin shall provide written and/or verbal specifications that identify, in part, subject matter, deadlines and compensation. Contributor shall use best efforts to ensure the Work conforms to such specifications and to any other reasonable directions, guidelines or requirements of Earnin. Contributor shall deliver the Work to Earnin by the date requested, time being of the essence. Upon receipt of the Work, Earnin shall, in its sole discretion, accept or reject the Work or return the Work to Contributor with required changes. EARNIN shall have no obligation to return any Works to Contributor. If Earnin commercially uses the Work, then such Work shall be deemed accepted. Contributor acknowledges and accepts that Earnin shall have the right to edit or adapt any Work with respect to its form or content as Earnin deems necessary or appropriate for publication, and Contributor shall cooperate with Earnin with respect to the same at no additional cost to Earnin. Contributor shall provide a bibliography and sources contacted in the process of creating the Work and include captions and pull quotes where appropriate.
4. PAYMENT. For each Work accepted by Earnin or unless non-monetary consideration is given, Earnin will pay Contributor a one-time fee in the amount set forth in writing (“Fee”), payable forty-five (45) days following the earlier of the date the Work is accepted or commercially used. Contributor acknowledges that the Work may appear in any product or service of Earnin (including, without limitation, film, video, magazine, book, syndicated column, reprint, online, radio, or television) or in any other medium, form, or format, whether now known or hereafter discovered, without any further payment to Contributor.
5. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and, unless earlier terminated, shall continue for a period of one (1) year. The Agreement shall automatically renew for additional one (1) year periods. Earnin may immediately terminate this Agreement or any engagement of Contributor with or without cause upon written notice. Contributor may immediately terminate this Agreement for any reason upon written notice, provided that at such time notice is given there is no Work in progress. All licenses and/or assignments for each Work submitted to and accepted by Earnin hereunder prior to termination or expiration of this Agreement shall survive any such termination or expiration. Additionally, the terms of Sections 2 (Rights in Work), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability), and 9 (Confidentiality; Non-disparagement), together with any provisions which, by their nature, should remain in effect beyond the termination or expiration of this Agreement, shall survive the expiration or earlier termination of this Agreement for any reason.
6. REPRESENTATIONS AND WARRANTIES. Contributor hereby represents and warrants with respect to each Work that (a) the Work is an original work of Contributor, is free from plagiarism, and Contributor is the sole author thereof; (b) the Work is not libelous or obscene; does not violate any right of privacy or publicity of any person; does not infringe any intellectual property or other right of any third party, whether contractual, statutory or common law; and does not otherwise contain any unlawful content; (c) the Work is not subject to any prior agreement, lien, encumbrance, or other right that may interfere with the rights of Earnin hereunder; and (d) Contributor has full right and power to enter into and perform this Agreement without the consent of any third party.
7. INDEMNIFICATION. Contributor shall indemnify and hold harmless Earnin, its officers, directors, employees, and agents from and against any and all claims, losses, liabilities, damages, expenses, and costs (including attorneys’ fees and court costs) (each, a “Claim”) that such parties may incur as a result of a breach by Contributor of any representation or warranty of Contributor made in this Agreement, provided that Contributor shall have no obligation under this Section 7 to the extent that any Claim arises from edits, additions, or modifications to the Work by Earnin or use of the Work by Earnin outside the scope of the rights granted herein. Earnin shall have sole authority to defend and/or settle each Claim, provided that Earnin shall give Contributor prompt written notice of any indemnifiable Claim and shall permit Contributor to participate in the defense of and/or settlement negotiations covering such Claim at Contributor’s expense with counsel of Contributor’s choosing.
8. LIMITATIONS ON LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES THAT MAY ARISE OUT OF THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), BREACH OF CONTRACT, OR BREACH OF WARRANTY, EVEN IF SUCH PARTY KNEW, SHOULD HAVE KNOWN OF, OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL EARNIN’S LIABILITY TO CONTRIBUTOR EXCEED THE AMOUNT(S) PAYABLE TO CONTRIBUTOR UNDER THIS AGREEMENT. The foregoing limitations on liability for damages shall be inapplicable to any contractual obligation to indemnify that may be set forth in this Agreement. Contributor acknowledges and agrees that the warranties, indemnities, and limitations on liability set forth in this Agreement form a fundamental part of the basis of the bargain hereunder, without which Earnin would not enter into this Agreement.
9. CONFIDENTIALITY; NON-DISPARAGEMENT. Earnin may make confidential data available to Contributor or Contributor may otherwise have access to proprietary or confidential information regarding Earnin or its affiliates (collectively, “Confidential Data”). Confidential Data includes all information not generally known or used by others and which gives, or may give, the possessor of such information an advantage over its competitors or which could cause Earnin injury, loss of reputation or goodwill if disclosed. Such information includes, but is not necessarily limited to: data or information about customers, business practices, financial results, fees, or marketing plans; data or information identified as “Proprietary” or “Confidential”; and/or data or information that Contributor should reasonably be expected to know is confidential. Confidential Data may be written, oral, recorded, or maintained on other forms of electronic media. Contributor agrees that both during the term of this Agreement and thereafter, Contributor shall not disclose any Confidential Data, except to their attorney or in response to a lawful subpoena or court order requiring disclosure of information. Because of the sensitive nature of the information that Contributor may obtain as a result of this Agreement, the Parties intend that these provisions be interpreted as broadly as possible to protect Confidential Data. Contributor agrees that both during the term of this Agreement and thereafter, Contributor shall not make any public disparaging statements concerning Earnin, including its directors, officers, employees, or agents. Furthermore, Contributor agrees to not work with or appear in any work of Earnin’s competitors. A breach of these obligations is a material breach under this Agreement.
10. NOTICES. All notices or reports permitted or required under this Agreement shall be in writing and shall be by personal delivery, e-mail, or by mail, signature requested, and shall be deemed given upon personal delivery or upon confirmation of receipt of delivery. Notices shall be sent to the addresses set forth in this Agreement or such other addresses as either party may specify in writing.
11. INDEPENDENT CONTRACTOR. Contributor’s relationship with Earnin is that of an independent contractor and nothing in this Agreement shall be construed to create a partnership, joint venture, or employer-employee relationship. Contributor is not the agent of Earnin and is not authorized to make any representation, contract, or commitment on behalf of Earnin. Contributor shall not be entitled to any Earnin employee benefits and Earnin shall not withhold or make payments for social security, unemployment or disability insurance, or obtain worker’s compensation insurance on Contributor’s behalf. Contributor shall be solely responsible for all federal, state or local tax returns and payments with respect to the services hereunder and receipt of fees therefor. Contributor hereby accepts exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, and hereby agrees to indemnify and hold harmless Earnin against any and all taxes or contributions, plus penalties and interest.
12. MISCELLANEOUS. This Agreement shall be governed and construed in accordance with the laws of the State of California as applied to transactions taking place wholly within California between California residents. Contributor hereby expressly consents to the exclusive personal and subject-matter jurisdiction of the state and federal courts located in the City and County of Santa Clara, California, for any dispute arising from or related to this Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces any prior understandings or agreements, written or oral, between the Parties. THIS AGREEMENT MAY BE CHANGED ONLY BY MUTUAL AGREEMENT OF AUTHORIZED REPRESENTATIVES OF THE PARTIES IN WRITING. A delay or failure of a party to exercise all or part of any of its rights under this Agreement shall not constitute a waiver of that right or of any other right. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. Earnin shall have the right to assign its rights or obligations hereunder to any other person or entity. Contributor may not assign its rights or obligations hereunder to any other person or entity and any such assignment shall be null and void. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their successors and permitted assigns. This Agreement may be signed and delivered by electronic or digital means.