This document outlines and creates a contractual relationship between Talkr and publishers (individuals, groups or companies that publish content on the web and have the legal right to sign binding contracts related to that content).
The publisher agrees to allow Talkr to create an audio version of the publisher's content, and to distribute the resulting podcast. The publisher also agrees to allow Talkr to display a text version of their content within Talkr's lightweight feed aggregator. Talkr agrees to provide an automated service which converts the publisher's RSS or Atom feed into a podcast. If the publisher chooses, Talkr will pay the publisher if the publisher's readers become paying customers of Talkr. Talkr may insert advertisements into the podcast, unless the publisher opts out.
The publisher allows Talkr to alter its content in ways that Talkr determines will improve the audio quality of that content for end users and subscribers. This may include:
The publisher grants Talkr permission to mention in the audio files that the audio is created by Talkr.
The publisher explicitly grants Talkr the right to exclude any text advertisements from the audio version of the content. Talkr will not remove text advertisements from the text version of the publisher's content that is displayed on the domain talkr.com.
The publisher agrees that Talkr may use its name and logo in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.
This contract explicitly defines a non-exclusive relationship: the publisher retains the right to enter into agreements with other text-to-speech and podcasting vendors. Talkr retains the right to enter into agreement with other publishers.
Talkr will provide the publisher with a link that the publisher may use to link to Talkr. If the publisher implements this link, and one of the publisher's readers follows the link and becomes a paying subscriber to Talkr, Talkr will provide a revenue share back to the publisher.
Talkr will pay the publisher a base commission of $7 for each subscriber that maintains their Talkr subscription for at least 30 days.
In addition, Talkr will pay the following incentives for publishers that refer subscribers in volume:
Talkr will pay its publishers on (at least) a net-30 basis. (For example, Talkr will pay its publishers for March within 30 days of the first day of April.) However, advertising and subscription revenue will be handled slightly differently from each other:
To ensure proper payment, the publisher (You) are solely responsible for providing and maintaining accurate contact and payment information associated with your account.
If an end user originates from a publisher's site and creates a free membership at Talkr but does not immediately subscribe, the publisher may still qualify for a commission. If that user returns within 30 days and upgrades their free membership to a subscription, Talkr will pay the standard commission to the publisher. If a user is referred to Talkr from multiple publishers, Talkr will pay a commission to the first publisher, provided they are still within the 30-day registration window.
If a subscriber requests and receives a refund for their subscription, and the publisher has already been paid for that subscription, Talkr will debit the amount of the revenue share paid to the publisher for that subscription from the publisher's next payment. If the publisher has stopped participating under this agreement the publisher agrees to refund that money to Talkr upon request.
Talkr will pay out commissions owed either (a) within 30 days after the end of the calendar year; or (b) within 30 days of the end of a month in which the publisher's commissions equal or exceed $100. If the publisher's commissions do not equal or exceed $100 in any particular month, that amount will be rolled over into the next month. On no condition will Talkr be responsible to pay out commissions of less than $10.
Talkr may find that it needs to change its Terms of Service at some point. Talkr will plainly post the new terms of service, and will include the dates of all changes. It is the publisher's responsibility to stay up-to-date with changes in service. Talkr will send an email to an email address of the publisher's choosing to notify them when any changes occur. It is the publisher's responsibility to read this email.
This agreement will stay in force for 1 year from the starting date of the agreement. It will automatically renew in subsequent years unless either the publisher or Talkr notifies the other party in writing within 30 days of the end of the initial term.
Either party may terminate this agreement at any time, without cause or reason, upon thirty (30) days written notice. Any payment due to the publisher will be made within thirty (30) days after termination.
Talkr makes no warranty, express or implied, including without limitation with respect to advertising and other services, and expressly disclaims the warranties or conditions of noninfringement, merchantability and fitness for any particular purpose. To the extent that ads are based on non-Talkr content, Talkr shall not have any liability in connection with the display of such ads.
Except for any indemnification and confidentiality obligations hereunder or your breach of any intellectual property rights and/or proprietary interests relating to the program, (i) in no event shall either party be liable under this agreement for any consequential, special, indirect, exemplary, or punitive damages whether in contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy and (ii) Talkr's aggregate liability to publisher under this agreement for any claim is limited to the net amount paid by Talkr to publisher during the three month period immediately preceding the date of the claim. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
You represent and warrant that (a) all of the information provided by You to Talkr to enroll in the Program is correct and current; (b) You are the owner of each Site or that You are legally authorized to act on behalf of the owner of such Site(s) for the purposes of this Agreement and the Program; and (c) You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of You hereunder. You further represent and warrant that each Site and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories.
You agree to indemnify, defend and hold Talkr, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Site(s), and/or Your breach of any term of this Agreement.
Any dispute or controversy arising under this Agreement unable to be resolved through non-binding Mediation which the parties shall first attempt, shall be determined and settled by arbitration under the Rules of the American Arbitration Association. Unless otherwise specified herein or agreed to in writing by the parties at the time of such dispute, each party shall pay his own legal fees and his pro rata share of the costs in connection with any arbitration conducted hereunder. Any arbitration award hereunder shall be final and binding, and judgment on the award may be entered by any court having competent jurisdiction.
No modification, amendment, addition to, or termination of this Agreement, nor waiver of any of its provisions shall be valid or enforceable unless in writing and signed by Talkr, which will be accepted by Your online acceptance of updated terms, or after Your continued participation in the Program after such terms have been updated by Talkr.
This Agreement shall be binding on and inure to the benefit of the parties, their distributees, their legal representatives, executors, administrators, estates, heirs, legal successors, and assigns.
All notices under this Agreement to Talkr shall be in writing, and shall be served by personal service, or by certified mail, return receipt requested, postage prepaid, at the last known address of the recipient. Any party may notify the other parties of the address to which notices shall be sent.
This Agreement shall be governed by the laws of the State of New Hampshire.
The parties hereto agree to sign all necessary documents and take all other action necessary to carry out the provisions of this Agreement.
This Agreement may be executed in any number of counterparts deemed for all purposes to be one Agreement.
If any provision of this Agreement, or the application of the provision to any person or circumstance shall be held invalid, the remainder of this Agreement, or the application of that provision to persons or circumstances other than those with respect to which it is held invalid, shall not be affected thereby.
The failure of Talkr to insist upon strict performance of any term, condition, covenant or obligation hereunder, irrespective of the length of time for which such failure continues, shall not be a waiver of Talkr's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation hereunder, shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation hereunder.
Each party hereto acknowledges that, before signing this Agreement and accepting its terms, the party has had every reasonable opportunity to consider these terms and to review them with the party's own independent attorney.
This Agreement contains the entire understanding of the parties hereto regarding the subject matter hereof and shall supersede and replace any prior agreement or agreements between the parties relating to the subject matter hereof.
The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Talkr.
The relationship between Talkr and You is not one of a legal partnership relationship, but is one of independent contractors.
IN WITNESS WHEREOF, the parties hereof have executed this Agreement as of the date first written below.
I DO NOT want Talkr to include advertising in audio files generated from my blog or news source.
TALKR, LLC
By: ___________________________ on _________________ 20_____
Chris Brooks, CEO and Manager
PUBLISHER
_______________________________ on _________________ 20_____
Print Name:
Title:
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