UPLOADER TERMS & CONDITIONS / INDEPENDENT CONTRACTOR AGREEMENT
This Service Agreement (“Agreement”) is made and entered into and effective as of the date of this submission (the “Effective Date”), by and between you (“Artist”), and CLICKCOACH, a Texas Nonprofit Corporation (“CLICKCOACH”) (each individually a “Party” and together the “Parties”).
WHEREAS, CLICKCOACH is a nonprofit, charitable organization which operates an online media-sharing platform connecting artists and the public to promote knowledge-sharing, collaboration, and advancement in music education; and
WHEREAS, CLICKCOACH desires to engage Artist as an independent contractor to perform certain services in support of its nonprofit endeavors pursuant to the terms and conditions set forth herein; and
WHEREAS, Artist wishes to perform such services for CLICKCOACH, and agrees to do so under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Appointment of Servicer Provider; Term; Obligations.
1.1. Appointment and Acceptance. CLICKCOACH hereby appoints Artist to provide the Services in accordance with the terms and conditions of this Agreement. Artist hereby accepts such appointment and agrees to provide the Services subject to, and in accordance with, the terms and conditions of this Agreement. Artist represents and warrants that he/she is qualified and capable in all respects to perform the Services. Artist shall comply with, and shall ensure that all Services are performed in accordance with, all applicable laws, ordinances, codes and regulations in effect at the time the Services are rendered.
1.2. Term. This Agreement shall come into force on the Effective Date and shall continue for the entire duration of the copyright of the Video or Videos (as defined hereunder) or until terminated pursuant to Section 3 of this Agreement, whichever is later.
1.3.1. Artist shall perform the following (the “Services”):
(a) Submit to CLICKCOACH for CLICKCOACH’s review a video recording or video recordings of the Artist providing instrumental and/or vocal instruction, general instruction or information, fundamentals, exercises, and/or techniques relevant to Artist’s area of expertise or knowledge;
a. Artist’s video recording(s) must consist solely of Artist’s original work; or
b. Artist must obtain permission from the original poster/creator if Artist uses any portion, regardless of length, of another’s original work, including, but not limited to, video and audio clips.
(b) Submit to CLICKCOACH for CLICKCOACH’s review photographs, biographies and/or such other information about the Artist as requested by CLICKCOACH relevant to introducing Artist as author or creator of the instructional video(s); and
(c) Abide by all policies, procedures and guidelines of CLICKCOACH.
1.3.2. CLICKCOACH shall perform the following:
(a) Engage Artist as a provider of the Services to this Agreement;
(b) Review, determine and select Artist’s instructional video(s) which meet the qualifications and standards of CLICKCOACH;
(c) Minimally edit, correct, standardize and organize Artist’s instructional video(s), photographs, biographies and other collected information, including metadata, and create the final instructional video or videos (“Video(s)”) to be posted on CLICKCOACH’s website;
(d) Create a trailer to accompany the accepted Video(s) by selecting a short (less than 20 seconds) clip from the Artist’s instructional video and adding CLICKCOACH’s introduction;
(e) Publish, monetize and market the Video(s) through various web and print publications, including, but not limited to, CLICKCOACH’s website, print and social media, and newsletter; and
(f) Collect and process proceeds from the Video(s) to Artist pursuant to Section 2 below.
2.1. Compensation. CLICKCOACH charges users of its services a specific fee per Video, which may change from time to time, for unlimited streaming access to the Video(s) for a thirty (30) day period. As complete and exclusive consideration for the Services rendered and the rights granted to CLICKCOACH hereunder, CLICKCOACH shall pay Artist approximately seventy-five percent (75%) of the proceeds collected from a Video or Video Bundle's base price, less Processing Fees (as defined hereunder) and Discounts (as defined hereunder) from Artist’s Video(s) which CLICKCOACH accepted and published on its platform (“Compensation”). The percentage of the proceeds collected, less Processing Fees (as defined hereunder) and Discounts (as defined hereunder) that constitutes the Artist’s Compensation is subject to change. CLICKCOACH shall not compensate Artist for submitted instructional video(s) which CLICKCOACH did not accept and did not publish on its platform. The Compensation shall be made by electronic or wire transfer from CLICKCOACH to Artist on or before the fifteenth (15th) day of every month and the total amount transferred shall account for Artist’s Compensation earned from the previous month. CLICKCOACH shall also issue via e-mail to Artist on or before the fifteenth (15th) day of every month a report which itemizes the number of user purchases associated with each of Artist’s Videos during the previous month. If Artist’s Videos do not generate revenue for a given month, or if the amount generated is less than or equal to the processing fee(s), Artist shall not receive any Compensation for that period but shall receive an email confirmation with this information.
(a) The standard processing fees incurred by the Artist includes the following, which may be subject to change:
i. monthly bank transferring fees incurred for depositing funds directly into the Artist’s bank account, as follows, and:
Bank Transfer Fees
ACH fee (transfer to U.S. bank account)
$1.00 USD per month
Foreign transfer fee
$5.00 USD per month
ii. a monthly subscription fee for Artists not electing to forward funds to "CCAF" of approximately four dollars and ninety nine cents ($4.99 USD) per month (“Processing Fees”). This monthly fee is subject to change and shall be deducted automatically from video proceeds generated by Artist's Video content on a monthly basis. Artists shall not owe this processing fee when sales of Artist's Video content is less than the amount of this monthly fee.
(b) Due to COVID-19, CLICKCOACH is waiving the monthly subscription fee for Artists. The Processing Fees are currently limited to the monthly bank transfer fees. However, post COVID-19, the monthly subscription fee for Artists may be added to the Processing Fees.
(c) In order to make Video content attractively priced for the user and/or more financially accessible to outside organizations to whom CLICKCOACH provides content, Discounts of up to one-hundred percent (100%) may be offered on any Video or Video Bundle without the prior written consent of Artist.
i. All Video Bundles which contain two (2) or more videos are offered to the user with a ten percent (10%) bundle discount, calculated on the base price. Artists not forwarding Video proceeds to "CCAF" are paid the approximately 75% proceed amount on the base price, less the Video Bundle discount and processing fees.
ii. As part of its Statement of Purpose CLICKCOACH shall provide Video content to selected groups and organizations at a discounted rate. The Artist shall receive the approximately 75% of the base price, less discounts made to these groups and organizations and less any other discount applied to the Artists' content.
(d) CLICKCOACH shall charge an additional "World Reach Distribution Fee" calculated as a 20% fee (base price x .20) on the base price of all Video content and sales. This fee is independent of the the Artist's proceed amount and shall not be included in the calculation of an Artist's Video sales.
2.2 Compensation Method. Artists have the following three options:
(a) The Artist may receive Compensation as described above in Section 2.1.
(b) The Artist may choose to forward all proceeds generated from his/her Video(s) directly to the CLICKCOACH Assistance Fund (“CCAF”). This is not a tax-deductible donation. Artist must elect to receive Compensation or forward all proceeds generated from his/her Video(s) directly to the CCAF (“Compensation Method”) on a three (3) month basis, during which Artist will not be able change his/her Compensation Method election.
(c) The Artist may donate to the CCAF using the donation link on CLICKCOACH.org. Donations made via the donation link on CLICKCOACH.org are tax deductible.
3.1. At-Will Relationship. This is an At-Will relationship. The Agreement may be terminated upon thirty (30) days written notice of Artist and/or CLICKCOACH to the other Party. Removal of video and artist content may take up to sixty (60) days from the date the request is made.
3.2. Responsibilities After Termination. Upon termination, Artist shall be entitled to receive any fee accrued and reimbursement due but unpaid as of the effective date of the termination. Artist acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement.
3.3. No Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.
3.4. In the event that a Party to this Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 30 days, the other Party may at its discretion terminate this Agreement by written notice at the end of that period. In such case, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination.
3.5. Survival. Notwithstanding anything to the contrary, Sections 3 (Termination), 5 (Indemnification), 6 (Limitation of Liability), 7 (Intellectual Property), 8 (Confidentiality), 9 (Representations and Warranties), 11 (Law and Jurisdiction), and 12 (Miscellaneous) will survive any termination or expiration of this Agreement.
4. Relationship of the Parties.
4.1. The Parties agree and intend that Artist, in performing the Services herein specified, shall act as an independent contractor and not an employee of CLICKCOACH and shall therefore have control over the manner in which such Artist’s Services are performed under this Agreement. Artist shall be free to contract from similar services to be performed for companies or organizations when not performing services under this Agreement for CLICKCOACH. Artist is not to be considered an agent or employee of CLICKCOACH and is not entitled to participate in any pension plans, bonuses, group insurance or other fringe benefits, if any, that may be provided by CLICKCOACH to its employees. CLICKCOACH shall not be responsible for withholding from any sums payable to Artist under this Agreement any amounts ordinarily withheld from an employee.
5.1. Artist shall indemnify and hold CLICKCOACH, including its directors, officers, agents and employees harmless from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising in connection with any and all charges, complaints, actions, suits, proceedings, hearings, investigations, claims, demands, judgments, orders, decrees, stipulations or injunctions brought by a third party and resulting or otherwise arising from (i) any breach by Artist of any of its representations, warranties, covenants or obligations under this Agreement, (ii) the negligence or misconduct of Artist or of his/her affiliates, sublicensees or subcontractors or their respective officers, directors, employees, agents or consultants relating in any way to this Agreement, and (iii) any third party claim arising from or relating to the Services provided hereunder, including, but not limited to, any copyright infringement claims, including, but not limited to, any and all claims made by the original posters/creators of content that Artists used in their video recording(s) submitted to CLICKCOACH.
6. Limitation of Liability.
6.1. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY CLAIMING BY OR THROUGH SUCH OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE LIKELIHOOD OF SAME.
6.2. EXCEPT WITH RESPECT TO BREACHES OF CONFIDENTIALITY OR AS OTHERWISE PROVIDED FOR HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE IN ANY WAY FOR AN AMOUNT GREATER THAN THE PAYMENT OWED TO ARTIST.
7. Intellectual Property.
7.1. Non-exclusive License. Artist hereby grants to CLICKCOACH a non-exclusive license to use the Services in any manner determined exclusively by CLICKCOACH, and to distribute the Video in all media now known or hereby developed, throughout the world (the “Territory”) as well as in advertising, publicity, and promotion of the Video.
7.2. CLICKCOACH shall be permitted to edit or modify the Video or perform post-production mastering alterations to the Video without the prior written consent of Artist. Nothing in this Agreement requires CLICKCOACH to use the Video and CLICKCOACH may use the Video in whole or in part in CLICKCOACH’s sole discretion. All rights in and to the Video shall be owned solely by CLICKCOACH, and Artist shall have no rights therein.
7.3. Artist reserves all of his/her right title and interest in the raw, unedited footage and native form of the Video prior to CLICKCOACH’s edits and modifications.
7.4. During the term of this Agreement, Artist may have access to and become acquainted with various trade secrets, consisting of formulas, processes and compilations of information, records, and specifications which are owned by CLICKCOACH and which are regularly used in the operation of CLICKCOACH’s business. Artist shall not disclose any of the aforesaid trade secrets, directly or indirectly, or use them in any way, either during the term of this Agreement or at any time thereafter, except as required in the course of his/her engagement hereunder. All files, records, videos, documents, drawings, specifications, equipment and similar items relating to the business of CLICKCOACH prepared by CLICKCOACH or for its benefit by third parties, shall remain the exclusive property of CLICKCOACH.
7.5. All materials, including without limitation curriculum, educational materials, instructional materials, documents, drawings, drafts, notes, designs, computer media, electronic files and lists, including all additions to, deletions from, alterations of, and revisions in the foregoing (together the “Materials”), which are furnished to Artist by CLICKCOACH or which are developed in the process of performing the Services set forth hereunder, or embody or relate to the Services hereunder are the property of CLICKCOACH, and shall be returned by Artist to CLICKCOACH promptly at CLICKCOACH’s request together with any copies thereof, and in any event promptly upon expiration or termination of this Agreement for any reason. Artist is granted no rights in or to such Materials, except as necessary to fulfill its obligations under this Agreement. Artist shall not use or disclose the Materials to any third party.
7.6. Artist further agrees to allow, without compensation, CLICKCOACH to use Artist’s likeness, name, voice, photograph, and biography, regardless of media form, for purposes of promoting the Video. Artist further agrees that they will not make any claim for further remuneration against CLICKCOACH, its licensees or assignees in respect of the use of such media.
8.1. Artist agrees, during the Term and thereafter, to hold in strictest confidence, and not to use, except for the benefit of CLICKCOACH, or to disclose to any person, firm, or organization without the prior written authorization of CLICKCOACH, any Confidential Information of CLICKCOACH. “Confidential Information” means any of CLICKCOACH’s proprietary information, technical data, protected health information, trade secrets, or know-how, including, but not limited to, business plans, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to Artist by CLICKCOACH either directly or indirectly.
8.2. Artist shall hold and maintain in the strictest confidence and in trust for the sole and exclusive benefit of CLICKCOACH, any information that pertains to CLICKCOACH’s users and like information, whether disclosed by CLICKCOACH or discovered by Artist.
8.3. Artist shall not use such information for his/her own benefit, publish or otherwise disclose it to others, or permit its use by others for their benefit or to the detriment of CLICKCOACH.
9. Representations and Warranties.
9.1. Each Party represents that it has full power, authority, and right to perform its obligations under the Agreement.
9.2. Each Party represents that this Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
9.3. Each Party represents that entering into this Agreement will not violate any material contract to which that Party is also a party.
9.4. Artist represents that any future contracts will be subject to CLICKCOACH’s license to the Video.
9.5. Artist represents that all content in the video recording(s) submitted to CLICKCOACH consists of Artist’s original work and/or Artist obtained permission from the original poster/creator to use any video clips, audio clips, or any portion, regardless of length, of the original work.
9.6. Artist will not change the terms of the Agreement, Services, Compensation, or any related term or condition through a “change order” or any such comparable mechanism; and
9.7. CLICKCOACH will not be obligated to pay any sums contemplated under any such change order or comparable mechanism.
10.1. Neither this Agreement nor any duties or obligations hereunder shall be assignable by Artist without the prior written consent of CLICKCOACH.
11. Law and Jurisdiction.
11.1 Choice of Law. The validity, interpretation, construction and performance of this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by the internal substantive laws of Texas, United States without reference to any choice of law rules.
11.2. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Agreement and all contemplated transactions in any forum other than the federal or state courts in Texas, County of Comal. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the federal or state courts in Texas, County of Comal. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
12.1. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.2. Entire Agreement. This Agreement (including any exhibits attached hereto) constitutes the entire agreement of the Parties with regard to the subject matter hereof, and replaces and supersedes all other prior or concurrent agreements and understandings, whether written or oral.
12.3. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by CLICKCOACH and an authorized representative of the Artist.
12.4. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
12.5. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.6. Counterparts/Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic medium shall have the same force and effect as an original signature.
12.7. Attorneys’ Fees. In the event litigation shall be instituted to enforce any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorneys’ fees and expenses incurred in such litigation in addition to any other recovery to which such party may be legally entitled.
12.8. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.9. Language. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties, regardless of which Party drafted the Agreement or any part of it.
12.10. Headings. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.