This PREMIUM CONTENT CREATOR AGREEMENT (this “Agreement”) forms a binding legal document between TikTok Pte. Ltd. (“Licensee”, “we”, or “us”), a Singapore corporation, and you (“Premium Content Creator”, “PCC”, “you”, or “your”), and sets forth the terms and conditions under which you may upload and make available Content (as defined below) on the Service (as defined below).
BY CLICKING ON “I ACCEPT” OR A SIMILAR BUTTON, OR BY CREATING A CREATOR ACCOUNT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND YOU REPRESENT THAT (1) YOU ARE OVER 18 YEARS OLD OR IF YOU ARE UNDER 18 YEARS OLD BUT OVER 16 YEARS OLD, THAT YOU HAVE YOUR PARENT’S OR GUARDIAN’S CONSENT TO FORM A BINDING AGREEMENT, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU REPRESENT, AND TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT.
We operate various websites and mobile applications, including, without limitation, TopBuzz.com, TopBuzz and BuzzVideo mobile applications, as well as other video and content offerings that we may own or control (collectively, the “Service”). We are excited to work with you to provide quality content to our users of the Service. Please note that in order to qualify as a Premium Content Creator, you must meet one of the following criteria: (i) you receive an invitation from us to join as a Premium Content Creator; (ii) you are an existing PCC on one or more of our other Service(s); or (iii) your application for being a PCC is approved by us based on PCC standard(s) as set forth and updated by us from time to time. The terms of this Agreement only apply to you if you are invited by us to join as a Premium Content Creator. Otherwise, you shall not be entitled to payment of the RPM Fee (as defined in Section 4) or any other payment, compensation or remuneration for any Content you uploaded to the Service.
LICENSE; CONTENT OBLIGATIONS.
2.1 License to Licensee.
PCC hereby grants to Licensee an irrevocable, perpetual, worldwide, non-exclusive, transferable, sublicenseable (through multiple tiers) license to: (a) use, copy, reproduce, process, translate, localize, adapt, modify, re-arrange, prepare derivative works of, perform, publish, transmit, display, distribute and otherwise exploit, through or on the Service, all content submitted, uploaded or published by PCC on the Service or otherwise provided by PCC to Licensee (which includes, for the avoidance of doubt, the audio, video, images, text, copyrights, associated metadata and other intellectual property incorporated therein) (collectively, the “Content”), including the right to grant to end users of the Service a limited, non-exclusive sublicense under Licensee’s license to download, stream, display, view, use and/or play the Content for personal, non-commercial use; (b) use PCC’s logos, trade names, trade dress and trademarks (the “PCC’s Marks”) as permitted herein in connection with the license granted in subpart (a) of this Section including the right to create a branded channel or page featuring the Content and PCC’s Marks. Licensee shall comply with PCC’s then-current trademark guidelines as provided to Licensee in writing; (c) use the Content to advertise, market and promote the Content or Service in any and all media, now existing or hereafter created (including by creating merchandising, trailers, and other materials derived from the Content for the purposes of marketing the Content or Service); and (d) if PCC is an individual, use PCC’s name, image, photo, likeness and voice in connection with the advertising and marketing of the Content or Service’ provided that PCC’s name may not be used to endorse any merchandising item or in any commercial tie-up without PCC’s prior written approval.
2.2 Use of Content; Advertising.
It is specifically understood and agreed by and between the parties hereto that Licensee has no obligation to upload or feature the Content on the Service or to otherwise use the Content, for any reason or for no reason. Licensee shall have the right to sell any and all advertising inventory within or in proximity to the Content including, but not limited to, all pre-roll, mid-roll and post-roll video advertisements, and ad overlays.
2.3 Content Guidelines.
PCC agrees that all Content provided under this Agreement will not violate the Community Guidelines and other relevant guidelines and policies in connection of content made available on the Service, and will also meet customary and accepted standards of decency for deals of this nature. PCC will not provide any Content that violates any law or infringes any right of any third party or any applicable law including, without limitation, any music rights such as sync, public performance, composition or recording rights, nor shall it provide any Content that is slanderous, libelous, discriminatory (based on race, religion, sex, nationality, disability, sexual orientation or age), defamatory, harmful, obscene, pornographic, harassing, abusive, or offensive. We take no responsibility and assume no liability for any content or materials submitted or posted through the Service by you or any third party.
2.4 Service Terms.
PCC hereby agrees to abide by the Terms of Service and the Privacy Policies and all related terms, guidelines and policies applicable to and available on the Service (including the Community Guidelines) (collectively, the “Terms and Policies”), as such terms may be amended from time to time in accordance with the terms therein. In the event of a conflict between the Terms and Policies, on the one hand, and this Agreement, on the other hand, the terms in this Agreement shall supersede and prevail.
2.5 Right to Edit Content.
Without limiting the foregoing, but subject to Section 2.6 below, PCC agrees that Licensee shall have the right (a) to combine any of the Content with such other materials as Licensee in its sole discretion shall determine, (b) to make, by any means, longer, shorter, altered or edited versions of any of the Content (including translated or localized versions thereof), and (c) to use such versions in the same way or ways in which Licensee is herein permitted to use the original Content. If, in Licensee’s determination, it is necessary or advisable to make edits or adjustments to the Content, Licensee may, in its sole discretion, do so, including removing or blurring any elements contained in the Content (such as small logos on clothing, artwork hanging or products displayed in the background).
2.6 Copyright Notices.
Notwithstanding Section 2.5 above, Licensee agrees not to remove or alter any copyright or proprietary notices from Content without PCC’s prior written permission.
2.7 Take Down Rights.
WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW, ANY TERMS AND POLICIES OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE SERVICE, INCLUDING ANY CONTENT THAT DO NOT COMPLY WITH SECTION 2.3 ABOVE. While Licensee has no obligation to monitor the Content and does not intend, and does not undertake, to monitor the Content, if Licensee is notified by PCC or otherwise becomes aware and determines in its sole discretion that: (a) the Content, or any portion thereof (i) infringe the intellectual property rights or any other rights of any third party; (ii) violate any applicable law or are subject to an injunction; (iii) are pornographic, obscene or otherwise violate the Terms and Policies or this Agreement (including Section 2.3 above); (iv) are materially inconsistent with Licensee’s practices or standards, or would reasonably be expected to adversely impact the reputation or goodwill of Licensee or the Service, or otherwise bring them into public disrepute; or (v) would reasonably be expected to create liability for Licensee; or (b) the display of the Content is impacting the integrity of the Service (i.e., users are unable to access such content or otherwise experience difficulty), Licensee may take down, not display or cease displaying that Content with no liability to PCC, and any RPM Fee(s) (as defined below) that have accrued, or otherwise would accrue, in respect of the Content that are taken down shall be null and void. PCC shall not include within, and at Licensee’s request shall immediately remove from, the Content, any content or annotations (or similar features) that conflict with the rights granted to Licensee under this Agreement or interfere with Licensee’s efforts to sell advertisements displayed against the Content.
As between the parties, PCC owns all rights in and to the Content as provided to Licensee. All uses of PCC’s Marks, and all goodwill associated therewith, shall inure solely to the benefit of PCC. Licensee shall remain the sole and exclusive owner of the Service.
Each party represents and warrants to the other party that: (a) it has full right and power to enter into this Agreement and to perform fully all of its obligations hereunder; and (b) there are no other agreements, written or oral, with any third party in conflict herewith.
3.2 PCC Representations and Warranties.
PCC represents and warrants to Licensee that: (a) it is the sole and exclusive owner of the Content and the PCC’s Marks, free and clear of all debts, liens, and liabilities, or otherwise has the right to grant the rights granted to Licensee hereunder; (b) there are no claims, litigation or other proceedings pending or threatened which would adversely affect any Content or rights granted hereunder; and (c) the creation and the use of the Content and PCC’s Marks as contemplated hereunder have not violated and will not violate any applicable laws and do not and will not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade dress, trade secret, music, image, moral rights or other proprietary or property right of a third party or constitute false advertising, unfair competition, defamation, or invasion of privacy or publicity rights.
4.1 RPM Fee.
Provided that PCC is not in material breach of this Agreement, as full and complete consideration for all services rendered and obligations performed by PCC hereunder, and all rights and privileges to which Licensee is entitled in connection with, during the Term and for a period of 180 days thereafter (the “RPM Fee Period”), PCC will receive a fee (the “RPM Fee”) for each relevant Content type (either Content which is video or Content which is not video) related to the number of unique valid views of the Content submitted, uploaded or published by PCC on the Service or otherwise to be provided to Licensee by PCC, in each case as determined by Licensee. Licensee reserves the right to revise the applicable RPM Fee and the Content type subject to payment of the RPM Fee.
(a) Unique Valid View; Invalid Activities.
With regard to Content in the form of video, a view will be considered a valid unique view only if the video being viewed is watched for at least five (5) consecutive seconds. With regard to Content in non-video form, a view will be considered a valid unique view only if the Content is fully downloaded by a third-party user. Licensee shall be entitled to withhold any payments of the RPM Fee to reflect, adjust or exclude any amounts arising from invalid activities, as determined by Licensee in its sole discretion (the “Invalid Activities”). Invalid Activities are determined by Licensee in all cases and include, but are not limited to, (i) spam, invalid queries, invalid views, or invalid impressions generated by any person, bot, automated program or similar device, including through any clicks, views, or impressions originating from the IP addresses or computers under PCC’s control; (ii) clicks solicited or views or impressions generated by payment of money, false representation, or requests for end users to click or view the Content or take other actions; and (iii) clicks, views or impressions co-mingled with a significant amount of the activity described in (i) and (ii) above.
(b) RPM Fee Calculation.
The RPM Fee will be calculated solely based on Licensee’s accounting, and the amount of the unique valid view and the information regarding the RPM Fee of a PCC will be made available to the PCC via the earning dashboard available on the Service.
(c) Additional Bonus.
In addition to the RPM Fee, Licensee may provide PCC with additional bonus payments at any time in accordance with the terms and conditions to be determined by Licensee, at its sole and absolute discretion.
(d) RPM Fee Suspension and Forfeiture.
(i) Suspension and Forfeiture. Without limiting the generality of other provisions hereunder regarding breach of this Agreement and violation of the Terms and Policies and other guidelines published by Licensee in connection with the Service by PCC, Licensee may, in Licensee’s sole reasonable discretion, (i) immediately suspend, without further notice, PCC’s entitlement to the RPM Fee for (x) one or more of the relevant Content type; and/or (y) one or more specific pieces of Content; (ii) forfeit the relevant RPM Fee derived by the Content at issue in case that such Content published by PCC on the Service is in breach of this Agreement or in violation of the Terms and Policies or other guidelines.
(ii) Appeal. If you reasonably believe you did not breach this Agreement or violate the Terms and Policies and other guidelines published by Licensee in connection with the Service, you may appeal the suspension or forfeiture of the RPM Fee. In order to appeal, you must contact us online here. Appeals sent via any other means will not be considered. Appeals are reviewed by Licensee in its reasonable discretion in the order they are received, and we do not guarantee suspension and/forfeiture will be overturned. Only the PCC of the Content in question may appeal a suspension and/or forfeiture, and frivolous appeals or appeals submitted to inquire on the status or request unsuspension of the Content that you do not own will not be considered. Abusing or spamming the appeals process may lead to additional suspension, extended suspension, or revoking of appeal privileges. Once your appeal has been reviewed, we will reply notifying you of the status of your appeal and Content. This will complete the appeal process. For the avoidance of doubt, if you are not prohibited from publishing Content, you may continue to publish Content during the appeal, but you will not be entitled to any RPM Fee for the Content that is subject to the suspension and/or forfeiture in appeal.
4.2 Payment Terms.
(a) Payment Request.
Subject to Licensee’s receipt and approval (not to be unreasonably withheld) of (x) a valid and executed Form W-9 of PCC; and/or (y) all documents or information reasonably required by the competent government authorities or applicable law (each to be submitted to Licensee via email@example.com) in connection with payment of the RPM Fee, PCC shall be entitled to submit a payment request (each, a “Payment Request”) with respect to the RPM Fee accrued in a calendar month during the RPM Fee Period through the revenue portal of Licensee at http://topbuzz.com/profile_v2/earnings (the “Revenue Portal”) after such calendar month but no later than three (3) months following the expiry of the RPM Fee Period (the “RPM Fee Request Deadline”). Each Payment Request must be made to Licensee prior to the fourth (4th) day of each calendar month in order to be processed within twenty (20) business days following Licensee’s receipt of the Payment Request. Any RPM Fee accrued during the Term and the RPM Fee Period that are not requested by PCC prior to the RPM Fee Request Deadline shall be deemed waived and Licensee shall not be obligated to make any payment not requested prior to the RPM Fee Request Deadline. For purposes hereof, the term “business day” shall mean any day except Saturday, Sunday or any day on which banks in the People’s Republic of China or the State of California are permitted to be closed.
(b) Payment Request Approval.
Subject to Licensee’s approval (not to be unreasonably withheld) of the Payment Request(s) made by PCC through the Revenue Portal, Licensee will pay the RPM Fee, to the extent that the Payment Request(s) are approved by Licensee, within twenty (20) business days of Licensee’s approval of the Payment Request; provided, however, that if the RPM Fee in any Payment Request is less than One Hundred US Dollar (US$100), Licensee may, at its sole discretion, defer such payment and rollover the balance into the following Payment Request until the unpaid RPM Fee (as calculated for all cumulative unpaid Payment Requests) equals at least One Hundred US Dollar (US$100). Unless contested, each payment shall be deemed correct and shall be conclusive and binding upon PCC thirty (30) days after the date of such payment is made by Licensee.
(c) Payment Currency.
All payments due under this Agreement will be calculated in U.S. Dollars, and will be paid to PCC in the currency to be selected by PCC from the available currency options on the Service (which can be selected and/or modified by PCC from time to time on the Service) at the conversion rate existing in the United States (as reported in the Wall Street Journal) on the date of the payment of each Payment Request of the RPM Fee.
(d) Transaction Fee.
If the RPM Fee in any Payment Request is One Thousand US Dollar (US$1,000) or less, Licensee shall have the right to deduct from such RPM Fee any third party payment transaction fees incurred in making the payment, including, but not limited to, bank fees, foreign exchange conversion fee, and wiring fees.
(e) Excusable Payment Delay.
Licensee shall not be liable for any delay in making any payment if (i) any such delay is not attributable to Licensee; or (ii) Licensee made all necessary arrangements to make the applicable payment on time, but an act or omission of a governmental authority (including tax clearance and foreign exchange control reviews) directly causes a delay in such payment.
(f) No Third Party Beneficiary.
Unless expressly authorized in writing by Licensee, PCC shall not enter into any type of arrangement with any third party where the third party receives payments or other financial benefits made to PCC under this Agreement.
4.3 Payment Account.
All payments due to PCC under this Agreement will be paid pursuant to the payment instruction information of PCC in effect as of the date of each Payment Request is submitted by PCC. PCC shall provide and update the payment instruction information in PCC’s account with the Service. PCC acknowledges and agrees that PCC shall be solely responsible for providing and maintaining complete and accurate contact and payment information; and that neither Licensee nor its affiliates will be required to re-send wired funds that were paid in accordance to information that was not updated by PCC if and until any misdirected funds are returned.
4.4 Withhold and Offset.
In addition to Licensee’s other rights and remedies, Licensee shall be entitled to (a) withhold and offset any payments owed to PCC hereunder against any fees PCC owes to Licensee hereunder or under any other agreement, or (b) require PCC to refund to Licensee within thirty (30) days of any amounts Licensee may have overpaid to PCC in prior periods.
4.5 Withholding Taxes.
Licensee shall be entitled to deduct and withhold any amounts it is required to deduct and withhold pursuant to any provision of applicable law and regulations in connection with Licensee’s payments to PCC hereunder. To the extent that amounts are so withheld, such withheld amounts (a) shall be remitted to the applicable governmental authorities in accordance with applicable law and regulations and (b) shall be treated for all purposes of this Agreement as having been paid to PCC. As soon as practicable after any such remittance to a governmental authority, Licensee shall deliver to PCC the original or certified copy of a receipt issued by such governmental authority evidencing such payment, a copy of the tax return reporting such payment or other evidence of such payment reasonably acceptable to PCC.
This Agreement shall commence on the Effective Date and will remain in effect until this Agreement is terminated by either Party (the “Term”).
5.2 Termination for Convenience.
Either party shall have the right to terminate this Agreement, with or without cause, upon sixty (60)-day prior written notice to the other party.
5.3 Termination for Breach.
Each party will have the right to terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching party; provided, however, that if the breaching party has commenced and diligently continued actions to cure such breach within such thirty (30) day period, the cure period shall be extended to ninety (90) days, so long as the breaching party is making diligent efforts to cure such breach.
5.4 Effect of Termination.
Notwithstanding any termination of this Agreement, the license granted to Licensee under Section 2.1 shall continue and Licensee’s right to use the Content provided under this Agreement shall continue perpetually; provided that, after the Term of this Agreement, Licensee’s right to display and distribute the Content shall be limited solely to those pages and platforms on the Service on which such Content were distributed and transmitted as of the termination of the Agreement. If Licensee terminates this Agreement due to any suspected breach of this Agreement or any violation of the Terms and Policies by you but does not delete your user account with the Service, you can continue to use the Service and to publish Content on the Service but will not be entitled to any RPM Fees or any rights, entitlements or privileges under this Agreement.
The rights, obligations, and limitations under this Agreement that the Parties have expressly agreed shall survive termination of this Agreement or that, by their nature, would continue beyond the termination of this Agreement, shall survive the termination of this Agreement for any reason. Without limiting the generality of the foregoing, the Parties intend that the following Sections survive the termination of this Agreement: this Section 5.5 and Sections 2.1, 2.2, 2.5, 2.7, 2.8, 3, 5.45.7, 5.8 and 6 shall survive termination of this Agreement and remain in effect and applicable until the end of the RPM Fee Request Period.
PCC shall indemnify and hold Licensee and its employees, contractors and agents, and their successors and assignors (the “Indemnified Parties”) harmless from and against any and all third party claims, proceedings, actions, damages, costs, expenses and other liabilities and losses (whether under a theory of strict liability, or otherwise) of whatsoever kind or nature (each, a “Claim”) incurred by, or threatened, imposed or filed against, any Indemnified Party to the extent caused by or arising out of or in connection with: (a) the breach or alleged breach of any of PCC’s representations, warranties, agreements, undertakings or certifications under this Agreement; (b) any use of any rights granted and/or materials (including the Content and the use thereof) supplied by PCC under this Agreement; and/or (c) PCC’s gross negligence or intentionally tortious or reckless acts or omissions or other intentional misconduct. PCC shall not settle, compromise or consent to the entry of any judgment or otherwise seek to terminate any pending or threatened Claim in respect of which the Indemnified Party is entitled to indemnification hereunder (whether or not the Indemnified Party is a party thereto), without the prior written consent of the Indemnified Party.
OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, LICENSEE DOES NOT MAKE ANY PROMISES OR COMMITMENTS ABOUT THE SERVICE, SUCH AS THE CONTENT WITHIN THE SERVICE, THE SPECIFIC FUNCTION OF THE SERVICE, OR THEIR PROFITABILITY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET PCC’S NEEDS. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. TO THE EXTENT PERMITTED BY LAW, LICENSEE EXCLUDES ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED. LICENSEE EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT SUCH STATUTORY WARRANTIES OR CONDITIONS APPLY AND CANNOT BE EXCLUDED, TO THE EXTENT TO WHICH LICENSEE IS ALLOWED, LICENSEE LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE WARRANTIES OR CONDITIONS TO, AT LICENSEE’S OPTION, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
5.8 Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSEE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF REVENUES, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF LICENSEE FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY LICENSEE TO PCC HEREUNDER. Each party acknowledges that the foregoing limitations are an essential element of the Agreement between the parties and that in the absence of such limitations the terms set forth in this Agreement would be substantially different.
PCC shall not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any or its rights or obligations under this Agreement without Licensee’s prior written consent. Licensee may freely assign this Agreement or any of its rights or obligations under this Agreement without the consent of PCC. Any purported assignment, sale, transfer, delegation or other disposition, except as permitted herein, will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assignors.
If any provision of this Agreement, or the application thereof to any person, place or circumstance, will be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision will be enforced to the maximum extent possible so as to effect the intent of the parties, or, if incapable of such enforcement, will be deemed to be deleted from this Agreement, and the remainder of this Agreement and such provisions as applied to other persons, places and circumstances will remain in full force and effect.
(a) PCC shall not disclose any Confidential Information without Licensee’s prior written consent. For purposes hereof, “Confidential Information” includes: (i) all Licensee’s software in source code and/or object code forms, documentation, program libraries, program listings, methods of processing, technical processes, operational methods, tools, trade secrets, client lists, methodologies, financial information (including information regarding sales and profits) and training materials relating to the Service; (ii) RPM rates or other statistics relating to performance of the Content on the Service; (iii) the existence of, and information about, beta features in the Service; (iv) any other information made available by Licensee that is marked proprietary or confidential or would normally be considered proprietary or confidential under the circumstances in which it is presented; and (v) any other information, whether disclosed orally, visually, in writing or by other means, made available by Licensee without written indication of its confidential or proprietary nature, but is later designated as Confidential Information by Licensee, provided that Licensee makes such designation in writing to PCC within thirty (30) days after the disclosure and a brief description to identify the information. Confidential Information does not include the information that PCC can demonstrate by competent written proof: (A) was already known to PCC, other than under an obligation of confidentiality, at the time of disclosure by Licensee; (B) was generally available to the public or otherwise part of the public domain at the time of its disclosure to PCC; (C) became generally available to the public or otherwise part of the public domain after its disclosure other than through any act or omission of PCC in breach of this Agreement; (D) was disclosed to PCC by a third party who has a legal right to make such disclosure and who did not obtain such information directly or indirectly from Licensee; (E) was independently discovered or developed by PCC without access to or aid, application, use of Licensee’s Confidential Information, as evidenced by a contemporaneous writing; or (F) was disclosed under operation of law, government regulation, or court order, provided that prior to the disclosure PCC has given Licensee notice and a reasonable opportunity to secure protection of such information.
(b) PCC shall only disclose Confidential Information to its employees, contractors and agents (“Employees”) that need to access such information in connection with the performance of this Agreement. Employees shall be bound by written agreements, enforceable by Licensee, that obligate Employees to comply with the provisions set forth in this Section 6.3. Upon termination of this Agreement or at any time Licensee may so request, PCC shall deliver promptly to Licensee, or, at Licensee’s discretion, shall destroy all memoranda, notes, records, reports, media and other documents and materials and all copies thereof regarding or including any Confidential Information which PCC may then possess or have under its control.
(c) PCC acknowledges that the disclosure of Confidential Information will cause irreparable injury to Licensee. Therefore, Licensee shall be entitled to injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without having to prove irreparable harm or posting a bond. Without limiting the foregoing, PCC shall advise Licensee immediately in the event that it learns or has reason to believe that any person or entity which has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and will reasonably cooperate with Licensee in seeking injunctive relief against any such person or entity. This provision shall not in any way limit any other remedies that may be available to Licensee at law or in equity. Notwithstanding this Section 6.3, PCC may accurately disclose the amount of gross payments resulting from PCC’s use of the Service under this Agreement.
6.4 Changes to Agreement; Amendment.
Licensee may modify this Agreement at any time and, and PCC agrees to browse updated Agreement (published here https://www.topbuzz.com/profile_v2/earnings/setting) on a weekly basis. Any modifications will not apply retroactively and generally will come into effect 14 days after the modifications are published; provided that modifications addressing new functions for new services or changes made for legal reasons shall come into effect immediately. If PCC does not agree to any modified terms in the Agreement, PCC shall stop using the Service. PCC’s continued use of the Service, following the publication of the modifications to this Agreement, shall constitute acceptance of the modified Agreement by PCC.
The waiver by either party of a breach of or a default under any provision of this Agreement, will not be valid and effective unless in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
6.6 Further Assurances.
PCC shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as Licensee may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
6.7 Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of California and shall be deemed when executed to have been made in the state of California in the United States of America.
6.8 Dispute Resolution.
In exchange for the benefits of the speedy, economical and impartial dispute resolution of arbitration, the parties, with the advice and consent of their selected counsel, choose to waive their right to resolution of their disputes in a court of law by judge or jury, and instead elect to treat their disputes, if any, pursuant to the Federal Arbitration Act and/or California Civil Procedure Code §§ 1281 et seq. in accordance with this Section 6.8. This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a Class Action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
The parties agree that any and all controversies, claims or disputes arising out of or related to this Agreement or the interpretation, performance or breach hereof or thereof, including, but not limited to, alleged violations of state or federal statutory or common law rights or duties (each, a “Dispute”), and any proceeding involving any such Dispute will be settled by a confidential, final and binding arbitration in Los Angeles, California administered by the Judicial Arbitration and Mediation Services (or its successor, “JAMS”) pursuant to the JAMS Comprehensive Rules and Expedited Procedures (the “Comprehensive Rules”) then in effect. For the avoidance of doubt, any Dispute about the enforceability of this Section 6.8 or whether a Dispute is subject to this Section 6.8 shall be resolved by arbitration. The obligation to arbitrate survives the termination of this Agreement. The parties desire and agree that any arbitration proceedings shall be conducted before an arbitrator to be selected pursuant to the Comprehensive Rules (the “Arbitrator”) as expeditiously as possible and acknowledge that expeditious arbitration is in the interest of the parties. The parties shall maintain the confidential nature of the arbitration proceeding, except as may be necessary in connection with a court application for a preliminary remedy, a court action to challenge or enforce the award, or as otherwise required by law or judicial decision. The parties further agree that the Arbitrator shall render the award in writing and explain the decision which, to the extent possible, shall not include confidential information. The parties waive to the fullest extent permitted by law any rights to appeal or to review of the award by any court or tribunal. Notwithstanding anything to the contrary in this Section 6.8 and in addition to any recourse to arbitration as set out in this Section 6.8, either party may file an action in any court of competent jurisdiction in the United States to enforce any arbitration award under this Agreement. Each of the parties hereto hereby irrevocably waives any objection or claim regarding improper jurisdiction, inconvenient forum or improper venue. For the avoidance of doubt, in the event of a conflict between this Section 6.8 and the Comprehensive Rules, this Section 6.8 controls.
If you do not want to arbitrate disputes with Licensee and you are an individual, you may opt out of this arbitration agreement by sending an email to firstname.lastname@example.org within thirty (30) days of the date you first access or use the Service.
Class Action Waiver
Any Dispute must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Dispute is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
6.9 Independent Contractors.
The parties do not intend to create and nothing in this Agreement shall be interpreted to create a joint venture, partnership, franchise, or principal and agent relationship. The Parties hereby acknowledge and agree that PCC’s relationship with Licensee is that of an independent contractor. Neither party is an agent, representative or partner of the other party. Accordingly, PCC hereby acknowledges and agrees that (a) PCC will not be entitled to any of the benefits that Licensee may make available to its employees; (b) as between Licensee and PCC, PCC assumes sole responsibility for all taxes; and (c) PCC is not authorized to make any representation, contract or commitment on behalf of Licensee unless specifically requested or authorized in writing to do so by an authorized officer of Licensee. This Agreement is solely for the benefit of the parties and their respective permitted successors and permitted assigns and may not be relied upon or enforced by any third party.
Unless otherwise stated hereunder, all notices and other communications under this Agreement will be in writing and will be deemed given (i) when delivered by hand, (ii) upon confirmed receipt of an e-mail, (iii) two (2) days after being deposited with an overnight courier, or (iv) five (5) days after mailing, postage prepaid, by registered, certified or first class mail, return receipt requested, to (x) in case of PCC, the email or street address provided by PCC to Licensee; and (y) in case of Licensee, the contact address set out as follows: https://www.topbuzz.com/profile_v2/earnings/setting.
Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
Headings used in this Agreement are for reference purposes only and will not be deemed a part of this Agreement.
6.12 Entire Agreement.
This Agreement and the Terms and Policies constitute the entire agreement of the parties hereto with respect to its subject matter and may be amended or modified only in writing and signed by duly authorized officers of both parties, and supersede all previous, contemporaneous and inconsistent agreements, negotiations, representations, understandings and promises between the parties, written or oral, regarding the subject matter hereunder. There are no oral or written collateral representations, agreements or understandings except as provided herein.
BY CLICKING ON “I ACCEPT” OR A SIMILAR BUTTON, OR BY CREATING A CREATOR ACCOUNT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS, AND YOU REPRESENT THAT (1) YOU ARE OVER 18 YEARS OLD OR IF YOU ARE UNDER 18 YEARS OLD BUT OVER 16 YEARS OLD, THAT YOU HAVE YOUR PARENTS’ OR GUARDIANS’ CONSENT TO FORM A BINDING AGREEMENT, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU REPRESENT, AND TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT.