FREELANCE TERMS

COVENANTS, REPRESENTATIONS AND WARRANTIES with writers

  1. The Publisher represents and warrants to Newscheckz that:
    1. none of the Publisher’s websites contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, work or other self-executing program;
    2. the Publisher websites are reputable and comply with all laws applicable in the jurisdiction where the Publisher is situated and also where the Publisher directly or indirectly conducts its business or markets an Offer;
    3. it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail;
    4. it has the authority to bind its Sub-Publishers to the terms hereof and shall be liable for any breach of this Agreement by its Sub-Publishers; and
    5. IF THE PUBLISHER IS AN INDIVIDUAL, THAT THE PUBLISHER WAS AT LEAST 18 YEARS OF AGE ON THE DAY THE PUBLISHER AGREED TO THIS AGREEMENT.
  2. The Publisher covenants and agrees that:
    1. it will, at all times, comply with all laws applicable in the jurisdiction where the Publisher is situated and also where the Publisher directly or indirectly conducts its business or markets an Offer;
    2. it will, at all times, comply with the terms of this Agreement, as updated, amended and replaced by Newscheckz, from time to time, in its sole discretion;
    3. it will not, without the express written consent of Newscheckz, use or permit its Sub-Publishers or any person for who it is in law responsible to use any third-party trade-names or trade-marks;
    4. it will not publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of Newscheckz is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, pornographic, likely to bring the reputation or standing of Newscheckz or the Client into disrepute, or which otherwise would be illegal;
    5. it will at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the Publisher elects to participate;
    6. it will at all times comply with the provisions of the CAN-SPAM Act of 2003, the Business and Professions Code, and applicable advertising laws as amended or replaced, from time to time;
    7. it will be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail;
    8. it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from DMM;
    9. it will not “frame” or “mirror” any part of any pages hosted by the Client unless expressly permitted by Newscheckz and the Client;
    10. it will not alter any website or electronic mail content provided by Newscheckz; and
    11. it will, at all times and from time to time, provide Newscheckz with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as Newscheckz may reasonably require.
  3. Each Party represents and warrants to the other that:
    1. it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement;
    2. neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and
    3. such Party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement.
  4. NON-COMPETITION
    1. Publisher recognizes that Newscheckz has proprietary relationships with its Clients. Publisher agrees not to circumvent Newscheckz’s relationship with any Client, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Client for whom Newscheckz generated actions, sales, leads, impressions or clicks under the Agreement for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either Party’s services herein for the six (6) month period (the “Non-Solicitation Period”) following the Publisher’s performance of any Campaign hereunder. Notwithstanding the foregoing, to the extent that Publisher can show via written documentation that any such Client already obtained services from Publisher prior to the date of the Publisher’s Campaign with Newscheckz, then Publisher shall not be prohibited from continuing such relationship, provided that in doing so Publisher does not circumvent Newscheckz’s relationship with the Client or attempts to induce the Client to reduce the amount of business it conducts with Newscheckz. Without limiting any other right or remedy of Newscheckz under this Agreement or applicable law, including but not limited to the availability of injunctive relief, if Publisher should violate this Section 8, then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher shall forfeit all Publisher Commissions earned but not yet paid by Newscheckz; and then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher shall pay to Newscheckz an amount equal to Newscheckz’s profits for the preceding eighteen (18) months generated by all Campaigns for such Client, or such lesser time as such relationship with the Client is in existence.
  5. DISCLOSURE OF INFORMATION
    1. Each Party or its directors, may, from time to time, disclose to the other Party certain information relating to its business or to its customers, publishers, subsidiaries, Affiliates, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Party; or any data as found on the Program Site (all collectively referred to as the “Confidential Information”). The other Party acknowledges that Confidential Information will be provided at the sole discretion of the other Party, and nothing in this Agreement obligates either Party, its directors, agents or employees to disclose or grant to the other Party access to any Confidential Information.
    2. Unless expressly authorized in writing by the disclosing Party, the receiving Party covenants and agrees:
      1. to use the Confidential Information only for the purposes expressly contemplated in this Agreement; and
      2. that no Confidential Information will be disclosed to any third party, Affiliate, subsidiary, agent, or employee of the receiving Party without the prior written consent of the disclosing Party, which may be unreasonably and arbitrarily withheld.
    3. The Parties each acknowledge that each Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The receiving Party agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of the disclosing Party.
    4. Upon termination of this Agreement, or otherwise on demand by the disclosing Party, the receiving Party agrees that it will promptly deliver to the disclosing Party all notes, data, tapes, reference items, sketches, drawings, memoranda, records, diskettes, electronic communications in any form, and any other materials in any way relating to any of the Confidential Information in the possession of the receiving Party or any Affiliate, subsidiary, agent, or employee of the receiving Party.
    5. Each Party acknowledges and agrees that:
      1. the provisions of this Section and the Parties’ agreement with the same are of the essence and constitute a material inducement to enter into this Agreement;
      2. the provisions of this Section shall be construed independently of any other provision of this Agreement, and the existence of any claim or cause of action either Party may have against the other Party, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Newscheckz of the provisions of this Section;
      3. that any breach of this Section would cause irreparable harm to the disclosing Party for which damages might not be an adequate remedy, and the receiving Party therefore agrees that in the event of any such breach, the disclosing Party will be entitled to seek, in addition to any other right accruing to the disclosing Party under this Agreement or otherwise in law or equity, injunctive relief against the receiving Party without the necessity of proving actual damages; and
      4. notwithstanding any other provision of this Agreement, this Section shall survive the termination of this Agreement, however caused.
    6. The receiving Party agrees to indemnify and save harmless the disclosing Party against any and all loss, costs or expenses, inclusive of court costs and legal fees on a solicitor and own client basis, which the disclosing Party may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the receiving Party or any person for whom the receiving Party is responsible, in law.
  6. INDEMNIFICATION
    1. Indemnification by Publisher. The Publisher covenants and agrees to defend, indemnify and save harmless Newscheckz, its parent company, affiliated companies, Newscheckz’s Clients, payment processors, service providers and their respective shareholders, directors, officers, and employees (collectively, the “Newscheckz Indemnified Group”) from and against any and all claims, suits, demands, damages, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred directly or indirectly as a result of
      1. Publisher’s breach of or non-compliance with this Agreement,
      2. Publisher’s violation of any law,
      3. any consumer, ISP provider, internet service provider or any governmental/regulatory complaint arising out of any email Campaign conducted by Publisher;
      4. Publisher’s acts or omissions in using, displaying or distributing any internet links obtained from the Program Site or elsewhere, including but not limited to Publisher’s use of internet links via email distribution, (each (a)-(d) individually is referred to hereinafter as a “Claim”), whether or not the Newscheckz Indemnified Group or any of them are named as a party defendant in any such proceedings. Should any Claim give rise to a duty of indemnification under this Section 10, Newscheckz shall notify Publisher, and Newscheckz shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher’s obligations to indemnify or hold Newscheckz harmless. Publisher shall not settle any Claim without Newscheckz’s prior written consent. Publisher also shall indemnify for any reasonable attorneys’ fees or other costs incurred by any of the Newscheckz Indemnified Group in investigating or enforcing this Section 10. The obligation of the Publisher to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this Agreement or any agreement between the Parties.
    2. Indemnification by Newscheckz. Newscheckz covenants and agrees to defend, indemnify and save harmless Publisher, its parent company and their respective directors, officers, and employees (collectively, the “Publisher Indemnified Group”) from and against any and all third party claims or judgments, including all associated reasonable attorneys’ fees, expenses and disbursements actually incurred, arising out of a breach by Newscheckz of any warranty, representation or covenant given to the Publisher in this Agreement. The obligation of Newscheckz to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. The Publisher may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Newscheckz. The Publisher may participate in the defense of all claims as to which it does not assume defense and control, and DMM shall not settle any such claim without the Publisher’s prior written consent which shall not be unreasonably withheld.
  7. DISCLAIMER
    1. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, Newscheckz DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER, WHETHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF PROFITABILITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT DMM’S SECURITY METHODS WILL BE SUFFICIENT, AND (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY). UNDER NO CIRCUMSTANCES IS DMM RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY CLIENT, ADVERTISER OR PUBLISHER, OR SUCH CLEINT, ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF A CLIENT OR AN ADVERTISER’S WEB SITE OR THAT A CLIENT OR AN ADVERTISER MAKES AVAILABLE THROUGH THE PROGRAM.
  8. LIMITATION OF LIABILITY
    1. ANY OBLIGATION OR LIABILITY OF Newscheckz UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (1) THE TOTAL OF PUBLISHER’S COMMISSIONS PAID TO PUBLISHER BY Newscheckz UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM; OR (2) TEN THOUSAND ($10,000.00) US DOLLARS. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. IN NO CIRCUMSTANCE WILL Newscheckz BE LIABLE TO THE PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER’S MARKETING EFFORTS) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS OF THE PUBLISHER OR THE PUBLISHER’S SUCCESSORS OR ASSIGNS.
  9. TERMINATION
    1. Newscheckz may terminate this Agreement, at any time, on six (6) hours’ Notice (defined below) to the Publisher. The Publisher may terminate this Agreement, at any time, on forty-eight (48) hours’ Notice to Newscheckz.
    2. Notwithstanding termination of this Agreement for any reason, the Publisher covenants and agrees that it will continue to be bound by the terms and conditions set out in Sections 5, 8, 9, 10, 11, 12, 14.1 of this Agreement.
  10. GENERAL
    1. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of Kenya, excluding its conflict of law rules. The Parties agree to the exclusive jurisdiction of the courts located in Nairobi County, Kenya with respect to any dispute arising as a direct or indirect consequence of this Agreement.
    2. Newscheckz may assign this Agreement without the Publisher’s prior consent. The Publisher may not assign this Agreement without the express written consent of Newscheckz.
    3. From time to time, Newscheckz may amend, supplement or replace this Agreement in part or in whole, on Notice to the Publisher of not less than five (5) business days. If within five business (5) days following Notice of such amendment, supplement or replacement the Publisher has not terminated this Agreement, the Publisher will be deemed to have consented to the same.
    4. Any notice or other communication (“Notice”) permitted or required by this Agreement will be in writing and given by electronic mail as follows:
      1. to Newscheckz, to the account representative assigned to Publisher; or
      2. to Publisher, at the email address provided to Newscheckz by the Publisher in its Program account. Any such Notice will be deemed to have been received on the date on which it was transmitted by electronic mail.
    5. No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both Parties.
    6. In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
    7. This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both Newscheckz and the Publisher.
    8. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.
    9. Force Majeure. Neither Party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
    10. Publisher agrees that Newscheckz may identify it as a Newscheckz Publisher in client lists and may use Publisher’s name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher’s name and/or logo not otherwise described or contemplated herein shall require Publisher’s prior written consent.

By doing business with Newscheckz the Publisher agrees to be bound by the terms of this Publisher Services Agreement: