Writer Agreement

Effective Date: October 22, 2015

Date of Last Revision: February 20, 2019


This Writer Services Agreement ("Agreement") is entered into between you (the Writer) and WittyPen Media Services Private Limited, ("WittyPen") having its Office No. 17, 5th Floor, A Wing, Downtown City Vista, Ashoka Nagar, Kharadi, Pune, MH – 411014, owner of the domain name and the website www.wittypen.com ("Site"). This Agreement incorporates (by reference or otherwise) all terms, conditions, rules, policies, and guidelines on the Site, including the WittyPen 'Terms of Use'.

This Agreement shall be effective from the date it is accepted by you on the Site.

  1. DEFINITIONS:

    The terms not defined in this agreement shall bear the same meaning as defined in the WittyPen Terms of Use.

    1. "Content" shall mean all content developed by the Writer in response to a Job assignment accepted by him/ her on the Site.
    2. "Job" means the request submitted by a Customer on the Site seeking digital written content to satisfy their aim of obtaining quality content.
    3. "Intellectual Property Rights" has the meaning given in the Terms of Use Agreement.
    4. "Submission" means any and all content developed by Writer as part of the Writer Contract as required to complete the Job and delivered to WittyPen.
  2. RESPONSIBILITIES AND PERFORMANCE

    1. The Writer agrees that he/ she shall be responsible for developing good quality, original Content in accordance with the terms of this Agreement; The Writer agrees that he shall make the Submission in response to a Job assignment accepted by him/ her on the Site, in a timely and professional manner, consistent with industry practice.

    2. The manner and means that the Writer chooses to perform the Job are within Writer's sole discretion and control, provided the Submission is made through the Site.

    3. In performing the Job, the Writer agrees to use/provide his/her own equipment, tools, and other materials at his/her own expense.

    4. The Writer agrees to not write/ publish any material which:

      1. Is defamatory,
      2. Is pornographic,
      3. Is or may prove to be detrimental to WittyPen,
      4. Hurts or likely to hurt the moral or religious sensibilities of any person or portion of the public,
      5. Incites violence, or
      6. Infringes or plagiarises any Intellectual Property Rights of a third party.
    5. The Writer further also agrees to be always diligent and shall be fair during performing his duties under this Agreement.

  3. DURATION OF SERVICES & EDITS

    The performance of the services for a Job commences from the time the Writer accepts the assignment and terminates on the date the Submission is finally accepted by the Customer or finally rejected either by WittyPen or the Customer.

  4. NON DELEGATION

    A Writer is exclusively assigned to a particular Job and is strictly prohibited from delegating the job further. The Writer shall execute the Job exclusively by himself/ herself. In an event of such delegating of the job, the Writer shall be permanently banned from the WittyPen platform and WittyPen shall be entitled to initiate legal action against him/ her in accordance with the law.

  5. EDITS AND REVISIONS

    1. WittyPen may, at its sole discretion, require the Writer to perform edits to a Submission.
    2. WittyPen may at its discretion reject the Submission and return the same to the Writer with comments, edits or any remarks in order to allow a Writer to make a revised Submission.
    3. If a Writer's revised Submission is rejected, WittyPen is not obligated to review any additional Submissions from the Writer in connection with that Job.
  6. INDEPENDENT CONTRACTOR RELATIONSHIP

    1. The Writer is:

      1. not an agent or employee of WittyPen;
      2. not authorized to make any representations, contracts, or commitments on behalf of WittyPen, including contacting WittyPen's clients or Customers;
      3. not entitled to any of the benefits that WittyPen makes available to its employees;
      4. is solely responsible for the Content of the Submissions and WittyPen shall not be directly or indirectly held liable for the Content of the Submissions; and
      5. solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to the Writer's performance of services and receipt of fees under the Writer Contract.
    2. The Writer has the right to be employed by, contract or otherwise perform similar services for other individuals or entities (specifically including direct competitors of WittyPen) during the term of this Agreement. In doing so, the Writer shall not make use of, or disclose, directly or indirectly, any confidential or proprietary information of WittyPen or its clients or Customers.

    3. The Writer shall maintain at his/her expense all certifications, licenses, continuing education, equipment and materials used to provide the services under this Agreement, including, but not limited to a telephone, computer equipment, and high-speed internet access.

    4. The Writer is solely and exclusively liable for complying with all applicable state, federal and international laws, including laws governing self-employed individuals, and other contributions based on fees paid to Writer under the Writer Contract.

    5. WittyPen will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers' compensation insurance on Writer's behalf.

  7. INTELLECTUAL PROPERTY RIGHTS

    1. The Writer agrees that each Submission is a 'work made for hire'. Upon the Writer's Submission of any Content pursuant to Job, any Intellectual Property Rights in the Submission will be the sole and exclusive property of WittyPen.
    2. If the Writer has any Intellectual Property Rights in or to the Submission that are not owned by WittyPen upon Writer's Submission, the Writer hereby automatically and irrevocably assigns to WittyPen all right, title and interest worldwide in and to such Intellectual Property Rights. Except as set forth below, the Writer retains no rights to use such Intellectual Property Rights and agrees not to challenge the validity of WittyPen's ownership in such Intellectual Property Rights. The Writer hereby waives any moral rights, rights of paternity, integrity, disclosure and withdrawal or inalienable rights under applicable law in and to the Submission.
    3. License to or Waiver of Other Rights. If the Writer has any right to such Intellectual Property Rights in the Submission that cannot be assigned by Writer, Writer hereby automatically upon receipt of payment from WittyPen unconditionally and irrevocably grants to WittyPen during the term of such rights, an exclusive, even as to Writer, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform and publicly display in any form or medium, whether now known or later developed, make, use, sell, import, offer for sale and exercise any and all such rights.
    4. Assistance. The Writer agrees to assist WittyPen in every way, both during and after the term of the Writer Contract or this Agreement, to obtain and enforce India and foreign Intellectual Property Rights relating to Submission in all countries. WittyPen will reimburse the Writer for any out-of-pocket costs associated with such obtaining and enforcement. In the event WittyPen is unable for any reason, after reasonable effort, to secure the Writer's signature on any document needed in connection with the actions specified above in this Section titled "Intellectual Property Rights," the Writer hereby designates and appoints WittyPen and its duly authorized officers and agents as his/ her agent and attorney in fact to act on behalf of the Writer to further the purposes of this Section with the same legal force and effect as if executed by the Writer.
  8. BILLING AND PAYMENT TERMS

    1. The Writer shall be eligible to be paid fees for a Job as per the 'Terms of Use' after:

      1. he/she has made the Submission and the same has been finally accepted by WittyPen, and
      2. after the payment for the Job has been received from the Customer by WittyPen.
    2. To the extent a Writer makes a Submission after the posted deadline stipulated for a specific Job, and such Submission is accepted by WittyPen, that Writer agrees that WittyPen may, at its discretion, deduct 10% from the fees payable to the Writer for that Job.

    3. Once a Job has been allocated to the Writer, he/she cannot then refuse to work on it. If the Writer does so refuse to work on the Job or defaults in providing a Submission within the specified time, a penalty of up to 20% of the total value of the Job may be imposed by WittyPen. WittyPen may, at its discretion impose this penalty by deducting the sum from amounts payable by WittyPen from any past Jobs or from any future payments due to the Writer by WittyPen.

    4. Expenses. WittyPen shall not be obligated to reimburse the Writer for any expenses incurred while engaged in the performance of services under this Agreement. The Writer shall be solely responsible for all such expenses, including, but not limited to, the cost of equipment, materials, training, licenses, and insurance.

    5. Tax Deducted at Source. Payment will be released by WittyPen subjected to deduction of withholding tax, as per applicable laws.

  9. CONFIDENTIAL INFORMATION

    1. "Confidential Information" means all information related to WittyPen and/or a Customer's business and its actual or anticipated research and development or related to a Submission delivered or agreed to be delivered from Writer to WittyPen, including without limitation (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (ii) information regarding products or plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; and (iii) information designated by WittyPen, either in writing or orally, as Confidential Information. It is understood that the Writer is free to use information that is generally known in the trade or industry, information that is not gained as a result of a breach of the Writer Contract or of confidentiality obligations contained herein, and information that already known to the Writer (before the same was disclosed to him/her by WittyPen or the Customer) as can be evidenced by written documentation.
    2. The Writer agrees that during the term of this Agreement or at anytime thereafter, except as expressly authorized in writing by WittyPen, Writer (a) will not use or permit the use of Confidential Information (as defined below) in any manner or for any purpose other than for development of Content for the Job; and (b) will not disclose or publish any Confidential Information to any third party without first obtaining WittyPen's express written consent on a case-by-case basis.
  10. WRITER REPRESENTATIONS AND WARRANTIES

    The Writer hereby represents and warrants that:

    1. the Submission will fully conform to the requirements and terms set forth on the Site and as specified by WittyPen or the Customer for the Job assignment;

    2. neither the Submission nor any part thereof will infringe or misappropriate the Intellectual Property Rights of any third party;

    3. the Writer will not during the term of this Agreement and at any time thereafter:

      1. publish directly or indirectly any part of the Submission;
      2. Claim any rights in or to the Submission or part thereof or challenge the rights of WittyPen or the Customer over the same;
    4. the Writer will not grant, directly or indirectly, any rights or interest whatsoever in the Submission to third parties;

    5. the Writer has full right and power to enter into and perform the Writer Contract without the consent of any third party;

    6. the Writer will comply with all laws and regulations applicable to Writer's obligations under the Writer Contract;

    7. the Writer is solely responsible for the acquisition and payment of any and all third-party clearances, permissions, fees, and licenses that are necessary in connection with Writer Services including with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials; and

    8. the Writer shall perform the services in a professional manner and all Submissions or Jobs shall use proper spelling, proper grammar and punctuation and shall contain factually correct statements. In addition, the Writer will verify all facts in each Submission. The Writer agrees that Writer will not hold himself, herself or itself out as being an employee of WittyPen or its clients or Customers to any third party, including, but not limited to, any state unemployment agency. The Writer agrees that he/ she is an independent contractor with respect to all Services provided pursuant to this Agreement.

  11. INDEMNIFICATION

    The Writer will defend, indemnify, and hold harmless WittyPen, its affiliates, licensees (in particular, any Customer that contracted with WittyPen for the Job concerning the Submission at issue), directors, employees, agents and advisors against any damage, cost, loss or expense arising from a claim, suit or proceeding brought against WittyPen or the Customer:

    1. Arising out of or relating to any breach of any term of this Agreement or violation of the Terms of Use by the Writer;
    2. Alleging that any Submission of the Writer infringes upon any Intellectual Property Rights of a third party;
    3. alleging that any Submission that the Writer delivered misappropriates any trade secret, of any third party.
    4. Without prejudice to its other rights under this Agreement, WittyPen shall have the right to withhold payments to the Writer, in case it suspects that the Writer has breached any terms, conditions, representations or warranties under this Agreement or under the Terms of Use.
  12. TERMINATION

    Termination with Cause. Either party may terminate the Writer Contract in connection with a Job immediately in the event that the other party has materially breached this Agreement or the Terms of Use and fails to cure such breach within fifteen (15) days of receipt of notice sent by the non-breaching party, setting forth in reasonable detail the nature of the breach. WittyPen may terminate this agreement without cause by giving the Writer 30 days prior written notice. The Writer may terminate this Agreement without cause by deleting his account on the Site.

  13. RETURN OF PROPERTY

    Upon termination of the Writer Contract or upon WittyPen's request at any other time, Writer will deliver to WittyPen all of WittyPen's property together with all copies thereof, and any other material containing or disclosing any Confidential Information.

  14. SURVIVAL

    In addition to the provisions of the Terms of Use that will survive, the following provisions will survive termination of the Writer Contract: Sections titled "Intellectual Property Rights," "Confidential Information," "Writer Representations and Warranties," "Indemnification," "Return of Property," "Survival," "Exclusion and Limitations of Liability," "Arbitration Agreement" and "General Provisions."

  15. DISCLAIMER OF WARRANTIES

    OTHER THAN THE WARRANTIES EXPRESSLY STATED HEREIN OR IN THE TERMS OF USE, WITTYPEN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE.

  16. EXCLUSIONS AND LIMITATIONS LIABILITY

    IN NO EVENT SHALL WITTYPEN BE LIABLE TO THE WRITER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL WITTYPEN BE LIABLE TO WRITER FOR ANY ACTION OR CLAIM RELATED TO THE SERVICES PROVIDED FOR THE JOB, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, IN AN AMOUNT IN EXCESS OF THE AMOUNT THE WITTYPEN PAID TO THE WRITER THROUGH THE SITE DURING THE THREE MONTHS PERIOD IMMEDIATELY PRECEDING THE DETERMINATION OF SUCH LIABILITY.

  17. ARBITRATION

    1. The Writer and WittyPen agree and acknowledge that Any controversy or claim arising out of or relating to this Agreement shall be determined by arbitration in accordance with the provisions of Arbitration and Conciliation Act, 1996. The arbitration proceedings will be conducted in English.
    2. The location of the arbitration proceeding shall be either Mumbai or Pune.
    3. The parties shall each bear their respective costs for legal representation at any such arbitration, except to the extent attorney's fees are explicitly provided by law. The parties shall split any initial administrative fee charged by the Arbitrator; however, the Arbitrator shall have the discretion to award appropriate costs to the prevailing party, as provided by law, and/or to require the parties to split the costs associated with the arbitrator and/or court reporter.
  18. GENERAL PROVISIONS

    1. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of India without regard to its conflicts of law principles.
    2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement (as the case may be) will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    3. No Assignment. The Writer's rights and obligations herein under this Agreement, may not be assigned or otherwise transferred by the Writer without WittyPen's prior written consent, and any attempted violation of the foregoing will be null and void.
    4. Notices. Each party must deliver all notices or other communications required or permitted under the Writer Contract to the other party at: WittyPen Registered Address: Office No. 503, 5th Floor, Plot No P 7, Knowledge Park, MIDC, Kharadi, Pune - 411014 Writer: E-mail and address registered on the Site
    5. Injunctive Relief. Writer acknowledges that, because its services are personal and unique and because the Writer may have access to Confidential Information as described in this Agreement, any breach of the Writer Contract by Writer may cause irreparable injury to WittyPen for which monetary damages may not be an adequate remedy and, therefore, will entitle WittyPen to injunctive relief (including specific performance). The rights and remedies provided to each party in the Writer Contract are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
    6. Waiver. No waiver, express or implied, of any term, condition or provision hereof by either Party shall be deemed or construed as to be a waiver of any other term, covenant, condition or provision hereof or be, deemed or construed so as to constitute, a like waiver with respect to any future requirement of performance under such terms, covenants, condition or provision.
    7. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless accepted by Writer and WittyPen.