By signing into eZdia Inc (the “Company”) platforms, you (the “Customer”) agree to the following Terms and Conditions of this Customer Commitment and Non-Disclosure Agreement (the “Customer Agreement”):
The Company is engaged in the business of providing processes and services in the areas of information technology and data services and providing licenses to its intellectual property in order to allow the Customer to utilize the Company’s processes and services. The Customer desires the Company to furnish certain technology and data services to Customer pursuant to this Customer Agreement and to license certain intellectual property owned by the Company in order to allow Customer to utilize such technology and data services. Subject to the terms of this Customer Agreement, the Company will use commercially reasonable efforts to provide Customer the Services as set forth in the Sales Order or Statement of Work (“SOW”). If applicable, as part of the registration process, Customer will identify an administrative user name and password for Customer’s eZdia account. The Company reserves the right to refuse registration or cancel passwords of users it deems inappropriate. Subject to the terms hereof, the Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice, or as explicitly stated in the Services, if applicable.
The Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by the Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, the Company hereby grants the Customer a non- exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
The Customer may not remove or export from the United States of America or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Customer Agreement and will be prohibited except to the extent expressly permitted by the terms of this Customer Agreement.
The Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with the Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. The Customer hereby agrees to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although the Company has no obligation to monitor Customer’s use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
The Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
As between the parties, the Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any Company Technology). The Customer hereby grants the Company a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Company Service and related services to the Customer and as set out in Section 3.2. For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the Company Service.
The Customer agrees that the Company will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is the Company’s Technology, which the Company may use for any business purpose during or after the term of this Customer Agreement (including without limitation to develop and improve the Company’s products and services and to create and distribute reports and other materials). For clarity, the Company will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). The Customer is not responsible for the Company’s use of Aggregate/Anonymous Data.
The Company agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification. The Company’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect the Customer Data from unauthorized disclosure and modification.
The Company does not provide an archiving service. During the Term of Service, the Customer acknowledges that the Company may delete Content no longer in active use. The Company expressly disclaims all other obligations with respect to storage.
The Company provides the ability for the Customer to export data at any time in the Company’s Service as described in the Documentation.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by the Customer to the Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
The Customer shall own all right, title and interest in and to the Customer Data. The Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
The Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to the Company, its affiliates and agents as are necessary or useful to perform the Services; and (b) to the Company as are necessary or useful to enforce this Customer Agreement and exercise its rights and perform its obligations hereunder.
Notwithstanding anything to the contrary, the Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning the Customer Data and data derived therefrom), and the Company will be free (during and after the term hereof) to: (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other the Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Subject to earlier termination as provided below, this Customer Agreement is effective as of the Effective Date with the Service Term as specified in the Sales Order or SOW, and, unless otherwise explicitly stated, shall be automatically renewed for additional periods of the same duration as the Service Term (collectively, the “Term”), unless either party requests termination via written notice at least thirty (30) days prior to the end of the then-current Term.
In addition to any other remedies it may have, either party may also terminate this Customer Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Customer Agreement. The Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Customer Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Upon termination of this Customer Agreement all rights granted to the Customer hereunder and all obligations of the Company to provide Services will immediately terminate and the Customer shall cease all use of the Company’s Services and Software.
The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or because of other causes beyond the Company’s reasonable control, but the Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS-IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, THE COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS CUSTOMER AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THE COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO THE COMPANY FOR THE SERVICES UNDER THIS CUSTOMER AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Customer Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Customer Agreement will otherwise remain in full force and effect and enforceable. This Customer Agreement is not assignable, transferable or sublicensable by Customer except with the Company’s prior written consent.
This Customer Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Customer Agreement only. Notwithstanding anything to the contrary herein, in the event that the Company and the Customer may have more than one Sales Order or SOW in place at any given time, previous agreements applicable to such Sales Orders or SOWs shall not be superseded or merged unless explicitly stated herein; and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
The relationship of the Company to the Customer is that of a vendor of professional services. No agency, corporate partnership, joint venture, or offer of employment is created as a result of this Customer Agreement and the Customer does not have any authority of any kind to bind the Company towards or by such endeavors. In any action or proceeding to enforce rights under this Customer Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
The Company may identify the Customer as its customer and display the Customer’s name and logo solely for such purpose on the Company’s website and marketing materials, provided that Customer may request that the Company cease such use at any time upon written notice to the Company.
All notices under this Customer Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Customer Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
By signing into eZdia Inc (the “Company”) platforms, you (the “Freelancer”) agree to the following Terms and Conditions of this Freelancer Commitment and Non-Disclosure Agreement (the “Freelancer Agreement”):
This Freelancer Agreement is created to outline specific requirements, expectations, disclaimers, and for the purpose of preventing the unauthorized disclosure of confidential and proprietary information, excepting where required by law, regarding the work required to fulfill writing, editing, quality assurance, and related analysis projects for the Company and its third-party clients.
For the purposes of this Freelancer Agreement, the term ‘Confidential information’ shall include, but not be limited to:
Freelancer will not sell, share, or otherwise compromise the integrity of their CrewMachine(™), eZoptimizer(™), or other Company work-related software accounts. Software accounts on any Company-owned platform and any third-party software accounts used by the Company for project needs, including those used for project discussions, training, planning, and/or vendor payments (example: Slack, Zoom, Udemy, Skype, Paypal, etc.), must be under the direct ownership and sole use of the Freelancer agreeing to this Freelancer Agreement and/or their Freelancer Assistants (see Section 8 below for more information on Freelancer Assistants and External Teams), and must be accurate and verifiable. There are no exceptions to this acknowledgement, including relationships with others residing within the same household, and/or familial, interpersonal, or marital relationships to the Freelancer or Freelancer Assistants. Violations will result in a permanent removal from all the Company’s platforms, the Company’s third-party contracted software applications, and projects, without exceptions, and may delay payments to the Freelancer.
This Freelancer Agreement will be mutual and unilateral, whereas the Freelancer and the Company shall be prohibited from disclosing confidential and proprietary client and project information to third-parties, except as required by law, and the Company shall have sole ownership of the assigned and delivered project work by the Freelancer in an effort to fulfill client project requirements.
A project’s client information, deliverables, duties, and process may only be discussed by the Freelancer in Company-dedicated digital locations (example: Skype, Zoom, Slack, etc.) or any other communication channels authorized by the Company to maintain project confidentiality. Outside, third-party inquiries into any aspect of a project’s specifics, including, but not limited to, sharing accounts, project status, scheduling, webinars, training videos, style guides, or pay rates, you are required to contact your project manager immediately and not to disclose this information to the third-party with the express permission of the Company’s project managers. Violations will result in a permanent removal of the Freelancer from all the Company’s platforms, the Company’s third-party contracted software applications, and projects, without exceptions, and may delay payments to the Freelancer.
During the term of this Freelancer Agreement, Freelancer will provide content writing, editorial, analytics, and other professional services to the Company (the “Services”). The Freelancer represents that The Freelancer is duly licensed (as applicable) and has the qualifications, the experience, the interest, and the ability to properly perform the Services. The Freelancer shall use the Freelancer’s best efforts to perform the Services such that the results are satisfactory to the Company.
The Freelancer’s relationship with the Company will be that of an independent contractor and not that of an employee. The Freelancer shall be solely responsible for determining the method, details and means of performing the Services.
The Freelancer may, at the Freelancer’s own expense, employ or engage the services of such employees, subcontractors, partners, or agents, as the Freelancer deems necessary to perform the Services (individually, ‘Assistant’; collectively, the “Assistants” or “External Team”). The Assistants are not and shall not be employees of the Company and the Freelancer shall be wholly responsible for the professional performance of the Services, professional conduct while in the service of performing the Company’s projects, payments, tax withholdings, and insurance requirements as determined by law of, for, and by the Freelancer’s Assistants such that the results are satisfactory to the Company.
The Freelancer shall expressly advise its Assistants of the terms of this Freelancer Agreement, and shall require each Assistant to execute and deliver to the Company a Confidential Information and Invention Assignment Agreement (the “Confidentiality Agreement”), which the Freelancer will keep on file for the life of the Freelancer’s relationship with the Company, plus a term of five (5) additional years. All Freelancer’s Assistants must be pre-approved by the Company’s management before working on any of the Company’s platforms. Once approved, each of Freelancer’s Assistants must have an individual account on the Company’s software platforms. To express interest in setting up an external team of Assistants, Freelancers must first email Community-PM@ezdia.com. Violations to this policy will result in the Freelancer and all Assistants permanently losing access to all current and future Company work, without exceptions.
Freelancer and Freelancer’s Assistants acknowledge and agree that Freelancer and Freelancer’s Assistants shall not be eligible for any Company employee benefits and, to the extent Freelancer and/or Freelancer’s Assistants otherwise would be eligible for any Company employee benefits but for the express terms of this Freelancer Agreement, Freelancer and Freelancer’s Assistants hereby expressly decline to participate in such Company employee benefits.
Freelancer and Freelancer’s Assistants shall not be authorized to incur on behalf of the Company any expenses, and will be responsible for all expenses incurred while performing the Services, unless otherwise agreed to by the Company’s Chief Executive Officer. As a condition to receipt of reimbursement, Freelancer and Freelancer Assistants shall be required to submit to the Company reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Freelancer Agreement.
Freelancer and Freelancer’s Assistants acknowledge and agree that Freelancer and Freelancer Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company’s management.
Freelancer and Freelancer’s Assistants shall have full responsibility for applicable withholding taxes for all compensation paid to Freelancer and/or Freelancer’s Assistants under this Freelancer Agreement, and for compliance with all applicable labor and employment requirements with respect to Freelancer’s and/or Freelancer’s Assistants’ self-employment, sole proprietorship, or other form of business organization, and with respect to the Assistants, including state worker’s compensation insurance coverage requirements and any U.S. immigration visa requirements. Freelancer and Freelancer’s Assistants agree to indemnify, defend, and hold the Company harmless from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to Freelancer or Freelancer’s Assistants.
Freelancer and Freelancer’s Assistants represent and warrant that Freelancer and Freelancer’s Assistants do not presently perform or intend to perform, during the term of the Freelancer Agreement, consulting or other services for, or engage in or intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any way involve products or services which would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Freelancer Agreement (except with advance written approval by the Company). If, however, Freelancer decides to do so, Freelancer agrees that, in advance of accepting such work, Freelancer will promptly notify the Company in writing, specifying the organization with which Freelancer proposes to consult, provide services, or become employed by and to provide information sufficient to allow the Company to determine if such work would conflict with the terms of this Freelancer Agreement, including the terms of the Confidentiality Agreement, the interests of the Company or further services which the Company might request of Freelancer. If the Company determines that such work conflicts with the terms of this Freelancer Agreement, the Company reserves the right to terminate this Freelancer Agreement immediately. In no event shall any of the Services be performed for the Company at the facilities of a third party or using the resources of a third party.
Freelancer represents and warrants that neither Freelancer, nor any of Freelancer’s Assistants, is under any pre-existing obligation in conflict or in any way inconsistent with the provisions of this Freelancer Agreement. Freelancer and Freelancer’s Assistants represent and warrant that Freelancer’s and Freelancer’s Assistants’ performance of all the terms of this Freelancer Agreement will not breach any agreement to keep in confidence any and all proprietary information acquired by Freelancer and/or Freelancer’s Assistants, in confidence or in trust, prior to commencement of this Freelancer Agreement. Freelancer and Freelancer’s Assistants warrant that Freelancer and Freelancer’s Assistants have the right to disclose and/or or use all ideas, processes, techniques and other information, if any, which Freelancer has gained from third parties, and which Freelancer and/or Freelancer’s Assistants disclose to the Company or used during the course of performance of this Freelancer Agreement, without liability to such third parties. Notwithstanding the foregoing, Freelancer and Freelancer’s Assistants agree that Freelancer and Freelancer’s Assistants shall not bundle with or incorporate into any deliveries provided to the Company herewith any third-party products, ideas, processes, or other techniques, without the express, written prior approval of the Company. Freelancer and Freelancer’s Assistants represent and warrant that Freelancer and Freelancer’s Assistants have not granted, and will not grant, any rights or licenses to any intellectual property or technology that would conflict with Freelancer’s and/or Freelancer’s Assistants’ obligations under this Freelancer Agreement. Freelancer and Freelancer’s Assistants will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the Services.
The Freelancer and Freelancer’s Assistants agree to arbitrate any and all claims against the Company and agrees to the terms of the following arbitration agreement (“Arbitration Agreement”):
The validity, interpretation, construction and performance of this Freelancer Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
Any term of this Freelancer Agreement may be amended or waived only with the written consent of the Company.
This Freelancer Agreement, including the Exhibits hereto, constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.
Any notice required or permitted by this Freelancer Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email or fax (upon customary confirmation of receipt), or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address or fax number as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.
The validity, interpretation, construction and performance of this Freelancer Agreement shall be governed by the laws of the State of California, without giving effect to the principles of conflict of laws.
If one or more provisions of this Freelancer Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Freelancer Agreement, (ii) the balance of the Freelancer Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Freelancer Agreement shall be enforceable in accordance with its terms.
This Freelancer Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.
The Company may, in its sole discretion, decide to deliver any documents related to this Freelancer Agreement or any notices required by applicable law or the Company’s Certificate of Incorporation or Bylaws by email or any other electronic means. Freelancer hereby consents to receive such documents and notices by such electronic delivery and agrees to participate through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS FREELANCER AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS FREELANCER AGREEMENT. THIS FREELANCER AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.