Print Story 1st Rejected Contract
Law
By lylehsaxon (Thu Aug 19, 2010 at 07:17:09 AM EST) (all tags)
This is the first contract the company who was illegally using my video sent me.  I flatly rejected this - saying I needed something in English.  (I can understand it, but it is way too convoluted to clean up, so I didn't/don't want anything to do with it.)  Is this a standard contract?  It seems very... dangerous and unfriendly to me.


CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE
 
This Confidential Settlement Agreement and Mutual Release (the “Agreement”) is made and entered into as of January xx, 2010 (the “Effective Date”), by and between
 
Lyle, on the one hand, and
 
Aabbc Bbdde, and XYZ-Co., Inc. (“XYZ-Co.”), on the other hand.  (Saxon, Bbdde and XYZ-Co. are collectively referred to as “the Parties” and individually as “Party”).
 
Recitals
           
Whereas, Saxon filed a Copyright Notice on September xx, 2009 with YouTube.com, asserting claims against XYZ-Co. (“the Notice”) relating to the posting of a video on YouTube via XYZ-Co.’s account; and
 
Whereas, the Parties wish to resolve the Notice and any and all disputes or claims between them;
 
Now, Therefore, in consideration of the mutual releases, agreements and understandings hereinafter contained, and for good and valuable consideration which the Parties expressly acknowledge, the Parties hereto agree as follows:
 
Terms
 
1. Communications with YouTube. No later than three (3) business days from the date of this Agreement, Saxon will contact YouTube and rescind the takedown notice he had sent to YouTube in connection with the Train Video having been uploaded to YouTube.  Within twenty-four (24) hours of this communication with YouTube, Saxon will notify XYZ-Co. by e-mail that this communication has been completed (the “Saxon Notice”).
 
2. Settlement Payment.   No later than two (2) business days after XYZ-Co. has received the Saxon Notice, XYZ-Co. shall make a non-refundable payment of $1,800 (one thousand eight hundred U.S. dollars) to Saxon (“the Payment”) by sending a wire payment via overnight mail to the bank account specified below:

3. Mutual Release of Claims.  The Parties, on behalf of themselves and each of their respective current and past officers, directors, agents, employees, shareholders, attorneys, insurers, assigns, subsidiaries, divisions, affiliates, licensors, predecessor and successor corporations, and representatives, each hereby unconditionally release and forever discharge the other, and its present and former parents, subsidiaries, predecessors, successors, assigns, and/or any of their present and former officers, directors, consultants, agents, representatives and/or employees, from, and agree not to sue concerning, any and all claims, rights, demands, actions, causes of action, suits, debts, liens, liabilities, costs, expenses or losses of any kind whatsoever, including any known or unknown claims, based upon, arising out of, in connection with and/or in any way relating to any act, failure to act, fact, event, transaction, or occurrence arising or taking place before the Effective Date.  Notwithstanding any of the foregoing, the Parties recognize that their obligations under this Agreement are unaffected by this release and neither Party waives any right to enforce this Agreement.
 
4. Use of the Train Video.  Bbdde and XYZ-Co. agree that neither they, nor any other entity owned or controlled by either of them, will knowingly upload, download or otherwise use the Bear Train Video in any form.  Notwithstanding the foregoing, the Parties recognize that XYZ-Co. may permit users of XYZ-Co.-controlled websites to upload pictures or videos without any involvement by XYZ-Co. and that XYZ-Co. cannot control such users’ behavior.  In the event that a third-party user of a XYZ-Co. site directly uploads the Train Video or any portion thereof to a XYZ-Co. site without XYZ-Co.’s knowledge, XYZ-Co. agrees to immediately remove the Train Video (and/or any portions thereof) from any XYZ-Co. site upon (1) becoming aware of the presence of that content on its site; or (2) being informed of the presence and location of that content on its site.
 
5. General Release.  It is understood and agreed that this Agreement is intended to cover and does cover all claims or possible claims of every nature and kind whatsoever based upon, arising out of, in connection with and/or in any way relating to any act, failure to act, fact, event, transaction, or occurrence arising or taking place before the Effective Date, whether known or unknown, suspected or unsuspected, or hereafter discovered or ascertained, and all rights under section 1542 of the Civil Code of California are hereby expressly waived.  The Parties hereto acknowledge that they are familiar with section 1542, which reads as follows:
 
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
 
The Parties hereto expressly, knowingly, and intentionally waive and relinquish any and all rights which they have under section 1542, as well as under any other similar state or federal statute or common law principle.
 
6. No Admission Of Liability.   It is agreed that the settlement and release effected by this Agreement is the compromise of disputed claims, and that any payment made hereunder is not, and shall not be construed as, an admission of any fact, wrongdoing or liability of any kind on the part of any Party hereto.
 
7. Confidentiality  The Parties to this Agreement and their counsel expressly acknowledge, understand and agree that as a material and integral term of this Agreement and the consideration therefore, the Parties, and all of their agents or representatives, including but not limited to their attorneys, will not, except as required by law or otherwise provided herein, disclose or make known or available to any third person, entity or organization, the terms of this Agreement or the negotiations relating thereto.  Each Party agrees not to disclose the terms of this Agreement or the related negotiations to any third party without the prior written consent of the other Party.  This obligation is subject to the following exceptions:

(a) disclosure is permissible if required by the Securities and Exchange Commission, Internal Revenue Service, other government agency or regulatory body, or court order, but only to the extent required and with reasonable precautions taken to:  (i) procure confidential treatment of the disclosed portions of the Agreement; and (ii) otherwise ensure that such disclosure is as limited as possible;

(b) disclosure is permissible if otherwise required by law, but only to the extent required and with reasonable precautions taken to:  (i) procure confidential treatment of the disclosed portions of the Agreement; and (ii) otherwise ensure that such disclosure is as limited as possible;

(c) disclosure is permissible if required to preserve, exercise or enforce rights under this Agreement, but only to the extent required and with all available precautions taken to procure confidential treatment of the Agreement and otherwise ensure that any disclosure of the Agreement and the contents thereof is as limited as possible;

(d) each Party may disclose the terms of this Agreement, on a confidential basis, to its directors, officers, employees, accountants, investors, potential investors, and attorneys, on a need-to-know basis, but only to the extent required and with reasonable precautions taken to ensure that such disclosure does not result in the Agreement, or any portion thereof, becoming known to anyone but the person to whom the Agreement was disclosed.

Should any Party feel that it is required to disclose the terms of this Agreement to a government agency or to a non-party to this Agreement, the Party shall promptly notify the non-disclosing Party of the potential disclosure to ensure that the non-disclosing Party has ample opportunity to petition the court or appropriate government agency that such disclosure should not be had.  No Party shall produce this Agreement or reveal the terms or negotiations thereof in civil litigation pursuant to a document request or subpoena.  Rather, the Party served with said discovery request shall object to its production and give notice of the discovery request to the other Party so that the other Party may petition the appropriate tribunal for a protective order.  The Parties to this Agreement intend that its confidentiality provision be interpreted as broadly as possible in order to provide maximum confidentiality.  All notices made pursuant to this provision shall be sent via e-mail to the e-mail address(es) for notice listed in Paragraph 10 to this Agreement.
 
8. Attorneys’ Fees and Costs.  The Parties will bear their own costs, attorneys’ fees and expenses.
 
9. Notification.  For all purposes of this Agreement, notice to the Parties shall be provided as follows:

10. Authority.  Each of the Parties represents and warrants that the undersigned has the authority to act on its behalf and to bind it and all who may claim through it to the terms and conditions of this Agreement.  Each of the Parties represents and warrants to the others that it has not heretofore assigned or transferred or purported to assign or transfer any of its claims herein, or any part or portion thereof, and agrees to indemnify and hold harmless the other from and against any claim, demand, damage, debt, liability, account, reckoning, obligation, cost, expense, lien, action and cause of action (including the payment of attorneys’ fees and costs actually incurred, whether or not litigation is commenced) based on, in connection with or arising out of any such assignment or transfer or purported or claimed assignment or transfer.
 
11. Entire Agreement.  This Agreement contains the entire agreement between the Parties and supersedes and cancels all previous oral and written agreements, discussions, communications, negotiations, commitments and writings in respect to the subject matter hereof.

The recitals are hereby incorporated into this Agreement by this reference.  The terms and conditions of this Agreement may be altered, modified, changed or amended only by a written agreement executed by duly authorized representatives of the Parties.
 
12. Severability.  If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
 
13. Construction.  This Agreement has been negotiated by the Parties and their respective counsel and will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against any Party.
 
14. Counterparts.  This Agreement may be executed by the Parties hereto in separate counterparts, each of which so executed and delivered shall be an original.  Delivery by facsimile or e-mail shall be sufficient for purposes of this paragraph.

In Witness Whereof, the Parties have executed this Agreement on the dates opposite their respective signatures and have read and fully understand the provisions of this Agreement.

---------------------------------------------------------------------------------

< Girls Just Wanna Have Fun | Copyright Counternotification & Stopping It (Nov. 2009) >
1st Rejected Contract | 35 comments (35 topical, 0 hidden) | Trackback
You really need to find a lawyer. by wiredog (2.00 / 0) #1 Thu Aug 19, 2010 at 07:38:57 AM EST
Here in the US you can usually find one who will put together a cease and desist nastygram for a couple hundred bucks, probably $500 or so for them to spend an hour or so reviewing the e-mails to see if you accidentally agreed to something, before they send the nastygram.

Seriously, you're seeking legal help from geeks who think the world will be logical...

Earth First!
(We can strip mine the rest later.)

I'll look into it... by lylehsaxon (2.00 / 0) #2 Thu Aug 19, 2010 at 07:59:49 AM EST
I'll look into it.  I've gotten used to the Japanese way where only under under extreme, outlandish, very rare conditions do people feel they need to go through a lawyer.  Most things can be sorted out somehow between the two parties is the general belief.  I wish it were that way in the US as well.

The shortest way home is the longest way 'round....
[ Parent ]
Looks like a standard contract to me by lm (4.00 / 1) #3 Thu Aug 19, 2010 at 08:03:53 AM EST
Legalese can often sound overly aggressive.

But I do think it's a "trap."  I would paraphrase the main purpose as "we admit we don't own your video in exchange for you admitting we have neither liabilities nor obligations if users of our web site upload your video."

So, if I read it correctly, if the same sort of incident happened again  in the future with your train video, they would have an agreement signed by you saying that they're allowed to do what they just did.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
You're correct except by anonimouse (2.00 / 0) #4 Thu Aug 19, 2010 at 08:08:51 AM EST
It does make it clear they have obligations to remove further copyright infringing material in (4) upon being notified of the fact.


Otherwise lm is correct its just standard legalese, especially sections 8 onwards.


Girls come and go but a mortgage is for 25 years -- JtL
[ Parent ]
They're required to do that by law. by ad hoc (4.00 / 1) #7 Thu Aug 19, 2010 at 09:26:12 AM EST
Putting it in a contract is a diversionary tactic. It means they don't have to remove offending videos unless you notify them. Now, you have to notify The Google. As you as you put it in this contract, you've, in effect, given them permission to steal your stuff because when you try to notify them of offending material, all of the sudden you will not be able to contact them.
--
[ Parent ]
As lyle tells it by anonimouse (2.00 / 0) #12 Thu Aug 19, 2010 at 10:38:04 AM EST
He notified them and they ignored it. This contract makes it plain they are not meant to. There is no permission involved here.

Readng all the responses makes me think there is an incredibly paranoid bunch of people on here. There are a few places where the agreement is badly worded and does not necessarily address what lyle appears to want, but no more than that.


Girls come and go but a mortgage is for 25 years -- JtL
[ Parent ]
It's not paranoia, it's US law by BadDoggie (2.00 / 0) #13 Thu Aug 19, 2010 at 10:48:14 AM EST
Which part of "They stole his video, lied to Google about it, and are now threatening him with legal action for not letting them do what they want with his video" are you not understanding?

woof.

OMG WE'RE FUCKED! -- duxup ?

[ Parent ]
I guess you've by ad hoc (2.00 / 0) #14 Thu Aug 19, 2010 at 11:26:36 AM EST
never dealt with American lawyers.

Badly worded agreements are by design.
--

[ Parent ]
not always. by aphrael (2.00 / 0) #18 Thu Aug 19, 2010 at 04:36:59 PM EST
there's a surprising amount of "copy + paste from the last document" crap that causes bad/irrelevant stuff to creep in, just like "copy + paste from the last chunk of code" causes bad/irrelevant code to creep in.

sometimes it's by design.

sometimes it's because people - including lawyers - are lazy. sometimes it's because the lawyers are terrified of making a mistake and so throw in the kitchen sink, just in case.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Maybe, maybe not. by ad hoc (2.00 / 0) #22 Thu Aug 19, 2010 at 05:27:03 PM EST
But he'll waste no time or effort in trying to exploit that "misunderstanding" to his own advantage which amounts to the same thing.
--
[ Parent ]
oh, sure. by aphrael (2.00 / 0) #23 Thu Aug 19, 2010 at 05:33:57 PM EST
but there's a difference between "i'm going to take advantage of the options created by this sloppy practice" and "i'm going to deliberately be sloppy so as to create options that i can take advantage of."

The outcome may be indistinguishable. But there's a process difference, and knowing which of the two is going on helps you figure out how to respond and how much to trust the other side. Which could lead to different outcomes.

Basically: I don't think it's helpful to assume the worst about people, in personal interactions or business interactions.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
You have your opinion, by ad hoc (2.00 / 0) #25 Thu Aug 19, 2010 at 05:44:38 PM EST
I have mine.
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[ Parent ]
yes. by aphrael (2.00 / 0) #26 Thu Aug 19, 2010 at 06:36:45 PM EST
and your opinion is basically about me.

i'm in training to be a lawyer.

you saying that poor drafting on the part of lawyers is deliberate with intent to screw people is tantamount to telling me that, if i make a mistake in drafting after i pass the bar, you will assume that i'm doing it to screw people, and that you'll be correct to make that assumption.

somehow, it seems, getting trained in the law makes people exempt from the benefit of the doubt, in your eyes.

how does that not make you a bigot?
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
It's not always about you. by ad hoc (2.00 / 0) #29 Thu Aug 19, 2010 at 06:58:56 PM EST

--
[ Parent ]
true. by aphrael (2.00 / 0) #32 Thu Aug 19, 2010 at 07:18:52 PM EST
but you're making a categorical claim about a group which includes me. that makes it include me.

and my broader point remains - you're denying the benefit of the doubt to an entire category of people based upon your experience with individuals.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
I'm sure there must be good, honest lawyers. by ad hoc (2.00 / 0) #30 Thu Aug 19, 2010 at 07:00:43 PM EST
I heard them say so in the news all the time.

I've just never met one.
--

[ Parent ]
And to be clear by ad hoc (2.00 / 0) #31 Thu Aug 19, 2010 at 07:02:22 PM EST
I'm talking specifically about corporate lawyers here.
--
[ Parent ]
Just to be clear by notafurry (2.00 / 0) #33 Fri Aug 20, 2010 at 02:38:35 AM EST
You do realize what the common element in all those relationships is?

I've met a lot of attorneys over the years, I've worked for a major law firm, I've owned a couple of companies... lawyers are a part of life in American business. Some of them are slimy worms who shouldn't be allowed out in society. Some of them are honest, hardworking professionals. They're all human.

[ Parent ]
I used to work at a PR agency... by lylehsaxon (2.00 / 0) #34 Fri Aug 20, 2010 at 03:05:05 AM EST
So I can understand how honest people end up doing dishonest work.  You've got bills to pay, rent to pay, food to buy, basically people prefer staying alive to dieing, but as a system, the American legal situation is getting worse and worse I think.  It just seems like (not always I'm sure, but too often) whoever can throw the most money at a case wins, regardless of its actual merit or any connection to human decency or morality.  In that sense, the system is really horrible I think.  Same with PR.  Actually, I ended up getting into several internal battles with people over blatantly unethical and dishonest behavior - such as a "translator" who was unable to actually translate the technical news articles he was hired to translate, so he dug up the US company's (the client) original press releases and copy-pasted out sections as though that's what the Japanese media was putting into their articles.

They were at least about the same products in question, but were - usually - quite inaccurate as translations, since things that *were* said were ignored, and things that were *not* said were reported as being said.  My reward for being ethical and calling (internal) attention to this fraud?  Ostracism within the company and eventual loss of employment.

It would appear that being honest doesn't pay, and unethical and immoral behavior does.  But how long can such behavior - throughout a society - go on before the society is no longer civilized?

The shortest way home is the longest way 'round....
[ Parent ]
There's two issues here by notafurry (2.00 / 0) #35 Fri Aug 20, 2010 at 12:32:01 PM EST
First, if your argument is that society (American society in particular) is becoming less civilized, with larger and more frequent instances of egregious, impolite, and unreasonable behavior, then I won't argue the point very strongly. I think that we hear more about the negatives than the positives and that part of the problem is less about how people act towards one another and more about the lack of civility in large-scale actions - e.g., I know a tea party Republican who's attitudes and political speech towards gays, non-Christians, and Muslims in particular are obnoxious in the extreme - but towards his friends and neighbors his behavior is exemplary, even the gay, non-Christian, and Muslim ones. Is he then civilized and polite for his personal actions towards his neighbors, or uncivilized for his attitudes in his political actions?

Second, none of that targets lawyers or shows in any way that lawyers are responsible for the problems. They may indeed be a part of the problem, but I suspect that's true only because lawyers are representatives of their clients - if the clients are less civilized, so too will be the behavior of their lawyers.

[ Parent ]
Contracts by ucblockhead (2.00 / 0) #15 Thu Aug 19, 2010 at 02:00:28 PM EST
He is utterly in the right and they are utterly in the wrong.  Signing any sort of contract can only hurt him.

This is at the "you do X with my work or I sue" stage not the "we'll negotiate something equitable" stage.
---
[ucblockhead is] useless and subhuman

[ Parent ]
Yes they are in the wrong by anonimouse (2.00 / 0) #20 Thu Aug 19, 2010 at 04:45:10 PM EST
but this is a settlement of the issue. Settlement contracts rarely admit right or wrong, they simply resolve the issue by one side paying out, and the other dropping the matter in return for that compensation. This is what was on offer here.

They're paying him $1800 for the aggravation he's been put through and in return he's withdrawing the takedown.

They're also stating that they will not do it intentionally again and if any further breach occurs by accident they will behave properly this time.

Admittedly $1800 is not a huge amount of money, but knowing US lawyers, its probably what you'd be left with after you went to court. Lyle had issues with the dates, and in order to get round this could simply send a letter telling Youtube that the matter has been settled between the parties and he therefore withdraws the current takedown notice, but reserves the right to issue further takedown notices if his copyrighted works are placed online without his permission in future.


Girls come and go but a mortgage is for 25 years -- JtL
[ Parent ]
Yes. by aphrael (2.00 / 0) #24 Thu Aug 19, 2010 at 05:43:00 PM EST
Lyle appears - based on this diary and what he said in one of the other ones - to have a specific dislike for US legal boilerplate and a negative reaction to it. That probably makes it harder to come to an agreement, since the other side's attorney doesn't seem to be sensitive enough to be able to deal with the issue.
If television is a babysitter, the internet is a drunk librarian who won't shut up.
[ Parent ]
"Mutual release" by Breaker (4.00 / 1) #5 Thu Aug 19, 2010 at 08:20:17 AM EST
Uh huh.  Uh huh uh huh huh.  /Beavis.


Again by anonimouse (2.00 / 0) #6 Thu Aug 19, 2010 at 09:18:31 AM EST
It simply sets a date where all claims between lyle and copyrightBreachers are deemed to have been resolved - it does not prevent any action as a result of behjavoir after the effective date,


Girls come and go but a mortgage is for 25 years -- JtL
[ Parent ]
Whoosh! by Breaker (4.00 / 1) #9 Thu Aug 19, 2010 at 09:32:16 AM EST
The sound of cheap innuendo passing you by!


[ Parent ]
Lyle: Sever contact NOW. by ad hoc (4.00 / 1) #8 Thu Aug 19, 2010 at 09:27:24 AM EST
You've probably already gone past the point of no return. There is no good faith here. Stop it. Stop it now. Just stop it.
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I was just... by lylehsaxon (2.00 / 0) #10 Thu Aug 19, 2010 at 10:32:33 AM EST
.. going over the history of it.....

The shortest way home is the longest way 'round....
[ Parent ]
Sever contact - by lylehsaxon (2.00 / 0) #11 Thu Aug 19, 2010 at 10:34:14 AM EST
- that seems to be the best thing.  (I misunderstood your meaning the first time I read it)

The shortest way home is the longest way 'round....
[ Parent ]
You do understand by ammoniacal (2.00 / 0) #16 Thu Aug 19, 2010 at 03:49:56 PM EST
that if you sign this agreement, or one similar to it, you will likely have breached the confidentiality clause by posting it in its entirety here? Ad hoc is right. I think you should reconsider what you've shared with us.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

yeah. by aphrael (2.00 / 0) #19 Thu Aug 19, 2010 at 04:38:34 PM EST
the inclusion of the confidentiality clause in this case really bugs me.

it might be standard boilerplate.

but i would recommend to anyone that such language be rejected unless it is there for a specific purpose (eg, protect corporate trade secrets, etc). I don't see the purpose here.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
I would guess to avoid bad publicity. by ammoniacal (2.00 / 0) #28 Thu Aug 19, 2010 at 06:46:24 PM EST
Like settlements after a celebrity plows his kid's nanny car into yours at an intersection.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
I have never remotely considered signing this one by lylehsaxon (2.00 / 0) #21 Thu Aug 19, 2010 at 04:46:02 PM EST
I refused this contact outright.  I have said I was thinking about it or anything beyond saying that I would read it.

The shortest way home is the longest way 'round....
[ Parent ]
Do you believe any settlement offer by ammoniacal (2.00 / 0) #27 Thu Aug 19, 2010 at 06:42:35 PM EST
they tender to you will be significantly different? I don't.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
Doesn't seem unusual at all. by aphrael (4.00 / 2) #17 Thu Aug 19, 2010 at 04:35:08 PM EST
It looks like a form contract to me.

Lawyers in cases like this are driven by a cerain amount of cover-your-ass: the attorney can be held responsible for bad representation if, for example, the disclosure stuff didn't include an explicit exemption for talking to the SEC, and the company talked to the SEC and then you sued them. So the contract includes all sorts of stuff that probably isn't relevant to the actual situation, just in case.

I would have refused to sign this contract because of the disclosure clauses, but nothing in the contract seems particularly outlandish to me.

[Reiterated, again, because I have to: I'm not a lawyer. I am not giving legal advice.]
If television is a babysitter, the internet is a drunk librarian who won't shut up.

1st Rejected Contract | 35 comments (35 topical, 0 hidden) | Trackback