Definition of Terms

When used in this Terms of Service Agreement, the following terms shall have the following meanings:

1. "Zadby" means the online marketplace and related services conducted by Zadby Inc.
2. "Agreement" means the Terms of Service regarding access, use, behavior, and other user responsibilities defined within this document.
3. "Site" shall mean the Zadby website, currently found at http://www.zadby.com?t=producer, that is owned, operated and maintained by or for Zadby Inc.
4. "Brand" means any individual or organization who engages Zadby to facilitate a Campaign and/or Commission as defined below.
5. "Campaign" means a set of commissioned videos that feature or are focused on a Brand's product or activity. Campaigns provide a mechanism for the Brand to establish the overall framework for the work they would like commissioned and contain one or more Commissions, as defined below.
6. "Commission" means the requirements posted by the Brand soliciting the creation of a video or set of videos. Commissions define specifics such as, but not limited to, run time, content, value proposition, target demographics, etc...
7. "Producer" means any individual or organization who elects to allow Zadby to facilitate the Submission of freelance content to requirements defined by a Brand, as defined below. Producers create videos in response to requirements posted by Brands and receive payment based on the number of views their video(s) receive.
8. "Submission" means the video or videos submitted through the Site by Producers in response to Commissions posted to the Site by a Brand.
9. "Pay Period" means a period of time in which an approved Submission can accrue views for a Commission.
10. "Budget" means monies set aside by a Brand to fund a Commission.

Acceptance of Terms and Conditions

1. Zadby provides the Site and related services subject to the terms and conditions in this Agreement. Use of this Site constitutes a binding agreement to this Agreement as defined below. You may print a copy of this Agreement using the print button or feature in your browser. We suggest retaining a copy for your future reference. Please review this Agreement carefully prior to using the site. If you do not agree to these terms, exit the site immediately.
2. Nothing in this Agreement confers any third-party benefits or rights other than those explicitly described in the document.
3. The terms, conditions, and responsibilities defined within this Agreement are subject to change at any time. While we will attempt to notify users of significant changes in our policies through the use of the contact information you provide, we recommend you review this Agreement from time to time. An up-to-date copy of our policy can be found at http://www.zadby.com/terms_of_service?t=producer.
4. This Agreement applies to all users of the Site, including Brands, Producers, and those individuals or organizations that are simply browsing the Site.

Site Content

1. Zadby reserves the right to refuse, edit, and/or remove any Campaign, Commission, or Submission that it, in its sole discretion, feels is inappropriate without prior notice to the individual or organization that provided the content. Zadby will take reasonable efforts to inform the individual or organization as to change(s) and the reason(s) behind it. The foregoing, however, shall not impose any obligation to monitor or edit such content.
2. All users of the Site understand and acknowledge that Submissions may contain offensive, objectionable, and/or inaccurate content, and you hereby waive any legal rights or remedies against Zadby with respect thereto. Additionally, users agree to indemnify, defend, and hold harmless to the fullest extent allowed by law Zadby, its partners, and/or licensors from and against all damages, claims, and expenses arising from their use of the Site and any Campaigns, Commissions, and/or Submissions they provide to through the Site, including any claims of intellectual property infringement arising from the foregoing.
3. All users accessing the Site are responsible for compliance with all applicable laws and agree that they will not submit material that is contrary to applicable local, national, and international laws and regulations.
4. In an effort to keep the Site as useful to our constituents as possible, Zadby may update and change materials and functionality within the Site at any time, without notice. From time to time this may require that we suspend or shut down the site entirely in order to make the changes. While we will make reasonable attempts to keep information on the site up-to-date, some materials on the Site may be out of date at any given time.
5. You may not use automated systems (e.g., robots, spiders, etc.) to access the Site. You agree not to collect personally identifiable information of other users of the Site or to sell or otherwise exploit that information.
6. Any rights not expressly granted in this Agreement are reserved by Zadby and/or its vendors and licensors.

Copyright and Intellectual Property

1. Unless otherwise defined by this agreement, all portions of the Site, including but not limited to HTML, graphics, photos, videos, sounds, JavaScript, interactive features, trademarks, logos, and copy, are the exclusive property of Zadby, subject to copyright and other intellectual property rights and shall not be used by any third party without prior written approval from Zadby Inc.
2. No users of the Site may use any part of the Site for commercial purposes without prior written approval from Zadby.
3. You may not use the Zadby name, logo, or Site for any purpose, including but not limited to events, promotions, documents, or web sites without Zadby's express written approval.
4. Materials posted by the Brand for use by the Producer in the production of a video or videos, such as, but not limited to, graphics, copy, instructions, logos, etc., are the exclusive property of the Brand, subject to copyright and other intellectual property rights and can only be used by the Producer for the production of video(s) for the Commission for which they have been approved. Once a video has been produced, all hardcopy (printed) and softcopies (electronic) materials other than the produced video must be destroyed and cannot be used for other purposes.
5. Submissions are the property and responsibility of the Producer. In no way is Zadby responsible for the accuracy, truthfulness, copyright, and/or intellectual property rights relating to the Submission. Any copyright or intellectual property infringements are the sole responsibility of the Producer. By submitting a video, the Producer declares that he/she has the appropriate rights, licenses, permissions, and consents to materials and intellectual property contained in the video.
6. As part of the screening process, Zadby does try and filter those Submissions that meet the requirements as defined by the Commission. Notwithstanding that Zadby has passed a Submission on to a Brand, this action does not constitute an endorsement or recommendation of the Submission nor does it warrant any opinion expressed within the Submission.
7. By posting a Submission, the Producer hereby grants Zadby a worldwide, royalty-free, and non-exclusive license to use, display, reproduce, and prepare derivative works in relation to promoting Zadby and/or the Producer. Zadby may not generate additional revenues from the Submission other than as provided in this Agreement.

Copyright Infringement

1. Zadby takes copyrights and copyright infringements very seriously and does not condone, support, or encourage any activity that misrepresents the Intellectual Property ownership of a video or other piece of content.
2. If you are a copyright owner and believe that a video submitted through Zadby infringes upon your copyrights, you may submit the following information to Zadby such that we can further investigate the incident and take the appropriate actions.
   1. Identification of the Submission in question including all known incidences of the infraction. Please include URLs for the allegedly offending content.
   2. Documentation as to copyrighted work or works claimed to have been infringed.
   3. A statement under penalty of perjury that the information represented by the inquiry is accurate and that the requestor has a good faith belief as to the ownership of said material.
   4. A physical or electronic signature of the copyright owner or their designated representative.
   5. Contact information sufficient to allow a Zadby representative to contact the requestor, such as contact name, mailing address, email address, and/or phone number.
   
   Copyright infringement notices should be sent to:
   
   

   Zadby
   Attn: Copyright Infringement
   11480 Commerce Park Drive
   Third Floor
   Reston, VA 20191.

   Failure to comply with all the requirements of this section may invalidate the copyright infringement notice.
3. Since Zadby does not host the Submissions, Zadby cannot remove any offending content directly but must work through the appropriate online outlets to accomplish this.
4. If a Submission has been removed from or disabled on an online outlet due to copyright questions and the Producer believes that the content does not infringe or that they have sufficient authorization from the copyright owner or agent to use such content, they may send a counter-notice directly to the online outlet per said outlet's counter-notice policy. In the case that the content in question was supplied by the Brand through the Zadby marketplace for the purpose of creating the Submission, Producers should contact Zadby, who can facilitate the resolution as to the grant of rights. To investigate the counter-notice, please provide Zadby with the following information:
   1. Your Zadby Username.
   2. The title of the Submission in question.
   3. A copy of any notification provided by the online outlet that has deleted, withdrawn, and/or hidden your Submission.
   4. Any content, graphics, copy, or other related content provided by the Brand for use in the development of the Submission.
   5. A physical or electronic signature of the copyright owner or their designated representative.
   6. Contact information sufficient to allow a Zadby representative to contact the requestor, such as contact name, mailing address, email address, and/or phone number.
   
   Copyright infringement notices should be sent to:
   
   

   Zadby
   Attn: Copyright Infringement
   11480 Commerce Park Drive
   Third Floor
   Reston, VA 20191.
   
   Or via email at support@zadby.com

   Failure to comply with all the requirements of this section may greatly lengthen the time it takes to resolve the issue. Zadby cannot be held responsible or liable for any time in which a Submission is not visible or accessible and thus cannot accrue views.

Your Account

You may create an account to access and use certain services and other features on the Site. You agree to provide only true and correct information in establishing your account. You are responsible for all activities conducted using your account and are solely responsible for safeguarding your password and other access information. You will notify us immediately if you believe the security of your account has been compromised. You may not use the account of another user without the other user's prior authorization.

Submissions

1. Submissions need to conform to the requirements defined in the Commission. By submitting a video, the Producer certifies a good faith belief that their Submission fulfills all the requirements defined in the Commission.
2. The Producer acknowledges and agrees that submission of a video does not guarantee the selection or approval of their Submission by the Brand, even if all the Commission requirements are met. Brands can reject a Submission at their sole discretion for any reason.
3. Since the Submissions will be hosted on third-party sights such as YouTube, AOL Uncut, and MySpace, Submissions must also conform to any restrictions issued by these sites as defined in their own terms and conditions or related documents. It is the sole responsibility of the Producer to ensure the conformity of their Submission to these third-party terms. Neither Zadby nor Brand can be held responsible or liable in any way for the removal or blockage of the Submission by a third party site.
4. Submissions must be completely original to the Producer, except to the extent it includes elements from the public domain or purposefully supplied by the Brand for the explicit purpose of creating the Submission. The Submission and any publication thereof shall not defame any Brand or infringe or violate personal, proprietary or other rights of any third party, including copyright, trademark or contract rights, moral rights or rights of privacy or publicity.
5. Submissions must be reviewed by Zadby and the sponsoring Brand prior to the video being posted on YouTube, AOL Uncut Video, MySpace or any other video site that Zadby supports at the time of the Submission.

Information and Data Protection

1. Zadby is committed to protecting your data and your privacy. Information collected on the Site is for enabling the marketplace and complying with applicable laws. Zadby does not resell, market, or otherwise distribute Brand or Producer information other than as specified in this Agreement and Zadby's Privacy Policy.
2. While Zadby takes every reasonable effort to protect your information, Zadby cannot be held responsible for the release of content posted on the public portions of the Site.
3. Sensitive information such as Federal Tax ID numbers and IRS Form W-9 information are encrypted prior to being stored. Access to this information is limited to Zadby management and accounting staff.
4. Brand Federal Tax IDs are required for the creation of the escrow accounts in accordance with Federal banking regulations and the US Patriot Act.

Brands

1. Brands represent, warrant and covenant they have the full right, power, and authority to comply with this Agreement, to create and support Campaigns and Commissions, and to perform all of the obligations defined in this Agreement.
2. Brands represent, warrant and covenant they will not provide any materials that (i) violates the intellectual property, privacy, publicity, or other rights of any individual or entity; (ii) is defamatory, obscene, threatening, harassing, or offensive; or (iii) violates any law, regulation, or rule.
3. Brands represent, warrant and covenant they hold the right, power, and authority to provide any materials, including copyrighted materials, to Producers for the sole purpose of Producers creating Submissions for the relevant Commission(s).
4. In conjunction with Federal regulations, Brands who register on the Site agree to provide their Federal Tax ID for the sole purpose of setting up an escrow account in which to store funds to be allocated to Brand Campaigns and Commissions.
5. Brands wishing to purchase additional rights to the Submission agree to allow Zadby to act as a broker facilitating the transaction.
6. In creating a Brand account with Zadby, the Brand grants Zadby the right to display the Brand name and logo on the Site and in Zadby specific marketing materials.

Producers

1. Producers represent, warrant and covenant they have the full right, power, and authority to comply with this Agreement, to submit the Submission(s), and to perform all of the obligations defined in this Agreement.
2. Producers represent, warrant and covenant they will not provide any materials that (i) violates the intellectual property, privacy, publicity, or other rights of any individual or entity; (ii) is defamatory, obscene, threatening, harassing, or offensive; or (iii) violates any law, regulation, or rule.
3. Producers represent, warrant and covenant they are at least 18 years old and, upon Zadby's request, shall provide Zadby with proof of the foregoing.
4. In conjunction with Federal regulations, Producers who earn funds through Zadby must provide a valid IRS Form W-9 prior to any funds being disbursed. International Producers need to provide proof of residence outside of US.
5. Zadby reserves the right to withhold payment on any Submission we believe has an artificially elevated view count due to the use of any simulated means, such as, but not limited to, web bots or automated scripting.
6. The Producer will provide any available demographic information on their audience to Zadby upon Zadby's request.
7. The Producer retains ownership and copyright to Submissions, both rejected and accepted. The Producer also maintains the responsibility to market the video through means such as blogging, email campaigns, etc.
8. In some instances, the Brand may wish to purchase additional rights to the Submission. In these instances, the Producer agrees to allow Zadby to act as a broker facilitating the transaction and to pay Zadby a fee for these services constituting 20% of the final purchase price of the additional rights to the Submission.

Calculations and Payments

1. Zadby calculates views for a Submission by aggregating the view numbers published by the Web sites on which the video is hosted based on the URL provided by the Producer when submitting a video for a Commission. Once a Submission has been made, the URL(s) associated with the Submission may not be altered.
2. Any views received by a Submission prior to the Submission being approved for a Commission are NOT included in the calculations for payment should that Submission be approved. Only views that occur after approval are accrued for payment.
3. After a Submission is approved, views are accrued into increments of 1,000 views. Payments are based on these increments of 1,000 views. If at the end of a Pay Period, a Submission has accrued less than 1,000 views; those views will be carried over to the next Pay Period. Similarly, if a Submission has accrued 1,500 views at a given Pay Period, Zadby will pay the Producer for the 1,000 views and carry forward the remaining 500 for the next Pay Period.
4. The "Commission Price" entered by the Brand when creating a Commission defines the amount of money paid by the Brand for 1,000 views of an approved Submission. The "Rate per Views" displayed to a Producer when reviewing a Commission online reflects the Commission Price set by the Brand less the Zadby marketplace fee, which ranges from no less than 20% to no greater than 33%.
5. Zadby currently runs a bill cycle on the first and fifteenth of each month meaning that the Pay Period would be the days in between those dates. Inclusive of the first but excluding the latter. For example: the billing cycle for May 1st would include views accrued from April 15th through April 30th. The billing cycle for May 15th would include views accrued from May 1st through May 14th. And so forth.
6. No views are aggregated or accrued once the Commission's Budget has been exhausted or the Commission's End Date has been reached. If a Commission exhausts its budget during a Pay Period, Producer(s) will receive a pro-rated payment for the views accrued over the period.
7. In the event that approved Submissions for a given Commission have not received sufficient views to exhaust the Budget during the Pay Period, the monies remaining in the Commission Budget can be refunded to the Brand or remain with Zadby to use for future Commissions at the Brand's sole discretion.

Confidentiality and Non-Disclosure

1. Confidentiality. The parties acknowledge that in the course of performing their responsibilities under this Agreement, they each may be exposed to or acquire information that is proprietary to or confidential to the other party. The parties agree to hold such information in strictest confidence and not to copy, reproduce, deconstruct, reverse engineer, decompile, create derivatives of, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties or to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of obligations hereunder or as otherwise agreed to herein, and to advise each of their employees, agents and representatives of their obligations to keep such information confidential. All such confidential and proprietary information described herein, including, but not limited to, Submissions, video concepts, storyboards, scripts, business plans and data relating to each party, the deliverables, or Customer data, are hereinafter collectively referred to as "Confidential Information". The parties shall use reasonable efforts to assist each other in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, the parties shall use reasonable efforts to advise each other immediately in the event that either learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and will reasonably cooperate in seeking injunctive relief against any such person.
2. Non-confidential Information. Notwithstanding the obligations set forth in Subsection 12(a), the confidentiality obligations of the parties shall not extend to information that: (a) is, as of the time of its disclosure or thereafter becomes, part of the public domain through a source other than the receiving party; (b) was known to the receiving party as of the time of its disclosure; (c) is independently developed by the receiving party; (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party; or, (e) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, subject to the receiving party providing prompt written notice to the disclosing party prior to such disclosure, so that such disclosing party may seek a protective order or other appropriate remedy. In the event that a protective order or other appropriate remedy is not obtained, the receiving party agrees to disclose only that portion of the Confidential Information which is required.
3. Injunctive Relief. The parties acknowledge that any breach of a party's obligations arising under this Section 12 ("Confidentiality and Non-Disclosure") will give rise to irreparable injury to the owner of such information; such breach will be inadequately compensable in damages. Accordingly, either party, reasonably believing the other party to be in breach of its Confidentiality Obligations, may seek and obtain injunctive relief against such breach or threatened breach, in addition to any other legal remedies which may be available. The parties acknowledge and agree that the covenants contained herein are necessary for the protection of legitimate business interests of owners of the Confidential Information and are reasonable in scope and content.

Links or Pointers to Other Sites

Zadby makes no representations whatsoever about any other Web site that you may access through this Site. When you access a non-Zadby site, please understand that it is independent from Zadby, and that Zadby has no control over the content on that Web site. In addition, a hyperlink to a non-Zadby Web site does not mean that Zadby endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.

Accuracy and Integrity of Information

Although Zadby attempts to ensure the integrity and accurateness of the Site, it makes no guarantees whatsoever as to the correctness or accuracy of the Site. It is possible that the Site could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Zadby so that it can be corrected. Information contained on the Site may be changed or updated without notice.

Warranty Disclaimer

THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NONINFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND HYPERLINKED WEB SITES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZADBY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

Limitation of Liability; Exclusion of Damages

IN NO EVENT SHALL ZADBY'S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE VALUE OF THE COMMISSION, IN ANY, IN QUESTION PAID IN THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. IN NO EVENT WILL ZADBY BE LIABLE TO ANY USER, BRAND, PRODUCER, OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER OR NOT ZADBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Limitation of Remedies

1. A Brand's exclusive remedy, and Zadby's sole liability for any claim arising out of Zadby's failure to perform any of its obligations hereunder shall be to terminate this Agreement and their account with Zadby and receive a refund from Zadby of any portion of funds unearned and/or unpaid to Producers with respect to their Submissions.
2. A Producer's exclusive remedy, and Zadby's sole liability for any claim arising out of Zadby's failure to perform any of its obligations hereunder shall be to terminate this Agreement and their account with Zadby and receive payment for views for those Submission which had been approved by a Brand for the specified Commission.

Waiver

No party may waive or release any of its rights or responsibilities under this Agreement except in writing and with the written approval of Zadby. The failure of the Zadby to assert a right under this Agreement or to insist upon compliance with any term shall not constitute a waiver of that right by Zadby or excuse a similar subsequent failure to perform by Brand or Producer.

Severability

It is the desire and intent that the provisions of this Agreement be enforced to the fullest extent permissible under the law. Accordingly, in the event that any provision of this Agreement is or would be held invalid, prohibited or unenforceable for any reason, then such provision shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision. Notwithstanding the foregoing, if such provision could be more narrowly construed so as not to be invalid, prohibited or unenforceable, it shall be so narrowly construed, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision.

Jurisdiction

This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Virginia applicable to agreements executed and to be wholly performed therein. The state and federal courts of the State of Virginia located in Fairfax County shall have exclusive jurisdiction over any case or controversy arising under this Agreement. Brands and Producers hereby acknowledge and agree that any Submission is being made in Virginia and shall not be governed by the applicable laws in jurisdiction of the Brand or Producer if different from Virginia.

Completeness

This Agreement contains the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings (whether oral or written) between the parties relating to the subject matter of this Agreement. This Agreement may not be amended except in writing signed by Zadby.

Zadby Marketplace

Zadby is an online marketplace matching Brands to Producers to create videos tailored for distribution through other online communities. Zadby works to ensure that every transaction transpires in a seamless manner. In the situation where irreconcilable differences between the Brand and Producer occur, all parties agree to hold Zadby completely harmless and not liable.

Force Majeure:

Except for payments due under this Agreement, no party will be responsible for any failure to perform due to causes beyond its reasonable control (each a "Force Majeure"), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that the party claiming a delay or adverse affect due to Force Majeure gives prompt written thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than sixty (60) days.

Independent Contractors:

The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the parties. Other than as stated in this Agreement, no party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.

Termination

1. In the event of a breach of this Agreement by Zadby which Zadby has failed to cure to the reasonable satisfaction of Brand within fifteen (15) days following receipt of written notice from Brand detailing the nature of such breach, Brand may, by issuing an additional written notice, terminate this Agreement without further obligation, and receive a full refund of all unearned funds on account with Zadby for any open Commission. Other than an event of default as described in the foregoing sentence, all Commissions once initiated are noncancelable and must run the duration defined within the Commission. Brand may terminate their account with Zadby upon prior written notice provided that there are no open Commissions and no funds owed Zadby or any Producer pursuant to a prior Commission.
2. Producers may terminate this Agreement provided they supply written notice to Zadby about their intention to terminate their account; there are no open and/or active Submissions associated with the Producer account; and no Brand assets are currently held by the Producer that require disposal or return to Zadby or the Brand. Provided the above, Zadby will close a Producer's account within 45 days of receiving notice from the Producer.