6.1.2 - Our Attorney's Response

Steve Mickley
Steve Mickley
Last updated 
Steve:  I've reviewed and drafted a lot of these types of agreements and I have a number of questions /comments for AIBD on the Agreement:
  1. Are you planning to host the content on the AIBD website and then license subscribers (your members) who wish to view the content?  The contract grants you a non-exclusive right to the content, so Taylor can host the same content on her own site?
  2. Are you planning to just have this content available on-demand as a link on your website that anyone who logs in as a member can access?
  3. What is the nature of the content - video, powerpoint, written lessons?
  4. Is the content being specifically developed for AIBD Members or is it more generic?  Do you need the right to modify the content at your reasonable discretion, such as adding your logo and additional AIBD information to the content that you are offering to Members?
  5. Paragraph 2(a) states that she will make reasonable efforts to provide 2-4 deliverables of content each quarter.  Are you obligated to take deliverables that you don't want or which don't meet AIBD's needs/expectations?
  6. Paragraph 2(b) - Do you really want Taylor to market the content that she is developing for AIBD?  She probably wants the right to sell it to others, but if so, we should prohibit her from referring to AIBD's use of the content without your prior consent?
  7. Paragraph 2(c) - she's reserving the right to place 3rd party Affiliate Links within the content. Do we want some say as to who those links are to (we may not want to promote that 3rd party).  If a purchase is made through a link that is from the AIBD content and your website, do you want a cut of the proceeds?
  8. Paragraph 3 - you need the ability to have your logo and some content on her content.
  9. Why does she need access to the backend of your hosting platform? AIBD is uploading it to its hosting platform and is responsible for maintaining all aspects of hosting.
  10. Paragraph 6(a) Warranty, should be much stronger.  She should warrant that neither the exercise of the rights granted under this Agreement nor any material embodied in the Content, nor any artwork, graphics, written work, text and/or image, or name or likeness, trademark, logo, or other identifying materials nor the distribution of any of them, will violate or infringe upon the privacy rights, publicity rights, intellectual property rights or other rights of any third party, or contain defamatory material or breach any duty of confidence of any person or violate any laws or regulations of any jurisdiction and that she has obtained all rights, consents, waivers and releases required to grant the rights, and deliver the Content, under the Agreement.
  11. Paragraph 6(b) negates her warranty given in Paragraph 6(a), non-infringement.
  12. There should be an indemnification provision indemnifying and holding AIBD harmless against all losses, costs and attorney's fees arising out of or relating to any claim, suit, action or proceeding by any unaffiliated third party related to or arising out of a claim that the content or her marks, or AIBD's use thereof in compliance with the Agreement, infringes upon a copyright or trademark right of any third party.
  13. The cap on liability in Paragraph 7 should not apply to limit her indemnification obligations referred to in point 12 above.
  14. Paragraph 8(a) The Initial Term is for 6 months with automatic renewals for additional 6 month terms unless terminated at least 30 days prior to the renewal term.  I do not like these evergreen renewals since it's too easy to miss the deadline to terminate, however if AIBD is not obligated to host any particular content, the termination provision doesn't really mean anything. In any event, AIBD should have the right to terminate at any time by removing all content from the provider from its website and by paying her the unpaid fees due to the date of termination.  She'll probably object if she is in the process of developing additional content for AIBD, but again, if it's non-exclusive she can use it for other clients.  At worst, we should give her 30 days advance notice.
  15. Paragraph 9(f) - be aware that the laws of Tennessee govern, and any action will need to be brought in Davidson County, TN, or in federal court.
  16. Exhibit A - Taylor determines what AIBD can charge for the content; are you OK with that?  I previously mentioned the 3rd party Affiliate links.
We should probably discuss these comments by phone and decide how you'd like to proceed.  I can certainly draft an Addendum once we speak and decide what you would like to push back on.
 
Ed

Note: Ed and I are scheduled to talk next week. Please provide me any input you may have to include with that phone call.