TalkAhead Service -Online Publishing - Standard Terms and Conditions
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR THE TALKAHEAD SERVICE ONLINE PUBLISHING PROGRAM. PARTICIPATION IN THE TALKAHEAD ONLINE PUBLISHING PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE TALK AHEAD ONLINE PROGRAM.
Introduction. This Publisher Agreement ("Agreement") between You and TalkAhead Inc. (the “Company") consists of these TalkAhead Service- Online Publishing Standard Terms and Conditions ("Terms and Conditions") and the application form you have fulfilled (the “Application”). A description of the TalkAhead Service (as hereinafter defined), as generally offered by the Company, is available at the Frequently Asked Questions ("FAQ") URL, located at https://www.talkahead.com/faq, or such other URL as the Company may provide from time to time. "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:
1. DEFINITIONS
The following capitalized terms will have the meanings set forth below:
“TalkAhead Software” means Company’s proprietary software product, including all client side components presented via an Internet browser, server side components installed on a server computer and all other software modules used as a platform that enables on-line Sponsored Comments on Internet sites, including management and billing of such Sponsored Comments.
“Article Page” means the web page hosted by the Publisher, in which an article is published and a link for the TalkAhead Service is inserted. On such Article Page the Sponsored Comments will be published.
“Publisher Site/s” means the Internet web site located at Publisher’s URL provide in its enrollment form, including all related web pages, owned or operated by Publisher.
"Advertiser" means the entity or person who uses the TalkAhead Service for publishing its Sponsored Comments on an Article Page.
“Sponsored Comment” means the content being served by the TalkAhead Service at the Article Pages, as provided by the Advertiser. Such content may be in a form of text, advertisement, banner, links or other similar forms.
“Company Marks” means the trademarks, service marks, logos and trade names of Company and its subsidiaries.
“Net Advertising Revenue” means the total gross advertising revenue actually received by Company for serving the Sponsored Comments on the Publisher’s Article Pages via the TalkAhead Service less any amounts paid for taxes, refunds, bad debts, transaction fees and contested credit transactions.
“Confidential Information” means the confidential or proprietary technical or business information of a party, including without limitation: (a) proposals or research related to possible new products or services; (b) financial statements and other financial information; (c) reporting information; (d) the material terms of this Agreement and the relationship between the parties; and (e) launch dates; provided, however, that all of the information will be considered confidential only if it is conspicuously designated as “Confidential,” or if provided orally, identified at the time of disclosure as confidential.
“TalkAhead Service” means the proprietary service offered by the Company to Advertisers, allowing them to serve Sponsored Comments with unique content on specific Web pages.
“JavaScript Tag" means HTML code that the Publisher implements on its website in order to participate in the TalkAhead Service.
2. LICENSE GRANT
2.1 License to Use the TalkAhead Software. Subject to the terms and conditions of this Agreement, the Company hereby grants to the Publisher a non-exclusive, non-transferable, non-sublicensable license to use the JavaScript Tag on Publisher Websites for the sole purpose of participating in the TalkAhead Service. Without derogating from the above, Publisher shall not: (i) use the JavaScript Tag for the purposes of developing a product that will be owned by a third party or that would compete with the TalkAhead Service; (ii) sublicense, rent, lend, lease, permit third party access to, or use of, the JavaScript Tag; (iii) copy, distribute, reproduce, sell, use or allow access to the JavaScript Tag, except as explicitly permitted under this Agreement; (iv) modify, adapt, translate, or prepare derivative works from the JavaScript Tag; or (v) remove, obscure, or alter the Company’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the JavaScript Tag. This is a license, not a sale, so title to the JavaScript Tag shall not pass to Publisher under any circumstances. The Company does not grant to Publisher any license, express or implied, under the intellectual property of the Company except as expressly stated in this Agreement.
The JavaScript Tag shall be licensed to provide Publisher’s Internet users with access and/or links to the TalkAhead Service and presenting the Sponsored Comments on the Publisher’s Article Pages.
2.1.1 Publisher may modify the TalkAhead Service appearance at the Article Pages, provided it shall not hinder the marks of the Company.
2.1.2 The Company shall host, maintain and manage the TalkAhead Software and Service on its servers and will serve the Sponsored Comments based on Advertisers requests and, to the extent applicable, Publisher’s approval.
2.2 Use of Company Marks. The Company hereby grant to Publisher the right to use the names, trademarks, trade names, drawings, logos and symbols associated with the Company to market, identify and distribute the TalkAhead Service, solely in the manner contemplated herein or as specifically approved by the Company.
2.5 Company Content Preference. On all Publisher Sites and Article Pages, Publisher will ensure that the Company is the exclusive source of any advertising and/or external service, linked to and delivered through Sponsored Comments, for the term of this Agreement.
3. PUBLISHER RIGHTS AND OBLIGATIONS
3.1 Title. As between Publisher and the Company, Publisher retains all right, title and interest in and to the Publisher Sites and Article Pages including content thereon.
3.2 Promotion of the TalkAhead Service. Publisher will make its best efforts to promote the TalkAhead Service. Publisher may promote the offering via online and offline advertising and marketing to its users and potential Advertisers.
3.3 Embedding of TalkAhead Software. Publisher shall create a link between Publisher’s Site and Article Pages and the TalkAhead Software, by embedding the JavaScript Tag in Publisher’s Site. Publisher shall have the sole right to determine on which Article Pages to include the TalkAhead Service and allow for the service of Sponsored Comments. The Publisher shall be entitled to determine the “look-and-feel” of the implementation of the TalkAhead Service on the Article Pages. Publisher shall have the right to determine the maximum number of Sponsored Comments per Article Page, the price per CPM (subject to minimum price to be agreed by the parties, whether in case of fixed CPM price or CPM price to be determined in a bidding process) and whether the Sponsored Comment may or may not include links to Advertiser site. Publisher shall not make any change or amendment to the JavaScript Tag without securing the Company’s advance written consent
3.4 Advertising Restrictions. Publisher has the right to restrict specific Sponsored Comments and to review any Sponsored Comments prior to its publication. Should so requested by Publisher, each of the Advertisers’ Sponsored Comments to be published on the Article Pages will be subject to advance approval by the Publisher. Publisher undertakes to use its best efforts to review the Sponsored Comments in real-time in order to increase the efficiency of the TalkAhead Service. As between the Publisher and the Company, Publisher shall be responsible for the content being included in the Sponsored Comments.
3.5 Technical Support. Throughout the Term, the Company will provide Publisher with: (a) reasonable technical support with respect to the TalkAhead Software and Service, as may be required from time to time; and (b) all reasonable assistance necessary for Publisher to perform its obligations hereunder.
4. COMPANY’S RIGHTS AND OBLIGATIONS
4.1 Title. The Company will retain all title and ownership in the TalkAhead Software and Service, and nothing in this Agreement will be construed to affect such rights. Company will be responsible for the quality and performance of the TalkAhead Service and Software and for any support, maintenance or other obligations related to the TalkAhead Service and Software, except as specifically provided herein. Publisher acknowledges that the Company Marks are owned solely by the Company and except as expressly provided above; Publisher does not hereby acquire any ownership or other rights in the Company Marks. Publisher will not remove, alter, or add to any Company Marks, copyright notices, or other proprietary rights notices from the TalkAhead Software and Service without the Company’s express consent.
4.2 Relationships with Advertisers. The Company will have the sole control and responsibility for maintaining the relationships with the Advertisers. Publisher shall refer any Advertisers inquiry regarding possible Sponsored Comments to Company.
4.3 Sponsored Comments Service. The Company will serve the Sponsored Comments on the Article Pages and shall be responsible for counting the number of Sponsored Comments that were served, based on the order made by the Advertiser.
5. PAYMENT TERMS
5.1 Net Publishing Fees. For sales of the Sponsored Comments on the Publisher’s Article Pages, the Company will pay to Publisher a Publishing Fee of sixty five percent (65%) of Net Advertising Revenues actually received by the Company for the Sponsored Comments being sold via Publisher’s Article Pages.
5.2 Payment by the Company. The Company will pay to Publisher the percentages of the Net Publishing Fees stated in Sections 5.1. Payments will be made to Publisher within thirty (30) days of the end of each month in which the Net Advertising Revenues are collected by the Company. If the amount payable to the Company is less than one hundred dollars ($100) for any one month, the Company will roll such amount over to the subsequent payment period, and shall not make any payment to Publisher until the accrued Net Publishing Fees for a payment period is at least one hundred dollars ($100). All payments made hereunder by the Company will be made by check (in US Dollars) or wiring transfer to an account designated by Publisher at the functional currency elected by the Publisher and supported by the Company, exchange fees and rates, to be borne by Publisher. The Company will provide Publisher with a report of the sales, number of Sponsored Comments served and Net Advertising Revenue generated via Publishers’ Article Pages each month.
5.3 Taxes and Payment Information. Publisher is solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with its account, as appearing in the Application. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. With respect to the Net Publishing Fees, Company will only transfer the fees to the Publisher and the entitlement to the fees will only arise, when the Publisher, if U.S. taxpayers, provided a valid U.S. tax identification number and a fully-completed Form W-9, and if non-U.S. taxpayers, provided a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. Publisher agrees to pay all applicable taxes or charges imposed by any government entity in connection with its receipt of the Net Publishing Fees. Each party is solely and separately responsible for its own taxes, user fees, or similar levies.
6. TERM
6.1 Term. The Agreement will commence on and is subject to, Company’s prior approval and Publisher continued compliance with the terms herein. The Company reserves the right to refuse the enrollment of any applicant or participant at any time in its sole discretion. .
6.2 Termination. Either party may terminate this Agreement if the other party materially breaches a term or condition of this Agreement and fails to cure such breach within seven (7) days of written notice specifying the breach. Additionally, each party may terminate this Agreement at any time, by issuing a 10 days’ advance notice to the other party.
6.3 Effect of Termination. Upon termination of the Agreement, the licenses granted to Publisher herein will terminate. The parties will continue to cooperate until all Sponsored Comments subscribed for by Advertisers prior to the termination has been served. Sections 4.2 (Title), 5 (Payment), 6.3 (Effect of Termination), 7 (Warranties, Liabilities and Indemnification) and 8 (General Provisions) - will survive the termination of this Agreement for any reason.
7. WARRANTIES, LIABILITIES AND INDEMNIFICATION
7.1 Company Warranties. The Company hereby represents and warrants to Publisher that: (a) it is authorized to enter into this Agreement; (b) it has the required rights to in the TalkAhead Software and has the rights to grant the rights granted to Publisher herein.
7.2 Publisher Warranties. Publisher hereby represents and warrants to the Company that: (a) it is authorized to enter into this Agreement; (b) it maintains adequate rights in and to the Publisher Sites and Article Pages (including without limitation under the intellectual property rights in and to any third party content contained therein) in order to allow the implementation of the TalkAhead Service therein and deliver the Sponsored Comments, including without limitation the right to modify and create derivative works of any materials on the Publisher Sites and Article Pages; (c) the Publisher Article Pages do not portray illicit drugs; and do not contain pornography, adult or mature content; or any content that otherwise promotes violence, illegal activity or infringes on the rights of others.
7.3 No Other Warranties. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PRODUCTIVENESS OR CAPACITY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. THE COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE TALKAHEAD SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE. THE COMPANY MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY ADVERTISEMENTS OR THE TIMING OF DELIVERY OF SUCH ADVERTISEMENTS. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY ADVERTISMENTS OR WEBSITES THAT ARE SERVED THROUGH OR TALKAHEAD SERVICE. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
7.4 Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, LOST DATA OR ANY FORM OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL A PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO PUBLISHER BY THE COMPANY HEREUNDER DURING THE PREVIOUS THREE (3) MONTH PERIOD.
7.5 Company Indemnification. The Company will defend, indemnify, and hold Publisher, harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against Publisher for: (a) actual or alleged infringement of any patent, copyright, trademark, service mark, trade secret, or other proprietary rights based upon the duplication, sale, license, or use of the TalkAhead Software or Service by Publisher in compliance with this Agreement; (b) a breach of the Company’s warranties as set forth on Section 7.1; (c) any Advertiser’s use of the TalkAhead Service including, without limitation, any actions or claims in product liability, tort, contract, or equity, unless such claim results from act or omission of Publisher.
7.6 Publisher Indemnification. Publisher will defend, indemnify, and hold the Company harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against the Company for: (a) actual or alleged infringement of any right in connection with implementing the TalkAhead Service on Publisher’s Sites or Article Pages or serving the Sponsored Comments on the Publisher’s Sites or Article Pages; (b) a breach of Publisher’s warranties as set forth on Section 7.2; (c) the content or substance of any Sponsored Comments being published via the TalkAhead Service on the Publisher’s Article Pages.
8. GENERAL PROVISIONS
8.1 Compliance with Laws. The parties hereto will comply with all material aspects of the laws and regulations applicable to its activities under this Agreement.
8.2 Notices and Contact Information. All notices and demands under this Agreement will be in writing and will be delivered by personal service, express courier, mail or e-mail transmission to the addresses provided at the Application. :
Either party may change their address set forth above by providing written or e-mail notice to the other party and, in case of Publisher, amending the Application. Notice will be effective on receipt.
8.3 Confidentiality. Except as expressly and unambiguously allowed herein, each party will hold in confidence and not use or disclose any Confidential Information and will similarly bind its employees and contractors in writing. The receiving party will not be obligated under this Section 8.3 with respect to information the receiving party can document: (a) is or has become readily publicly available with restriction through no fault of the receiving party or its employees or contractors; (b) was received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the disclosing party; or (e) is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party. The parties' obligations with respect to Confidential Information will continue for the shorter of two (2) years from the date of termination of this Agreement or until one of the above enumerated conditions becomes applicable. Each party acknowledges that its breach of this Section 8.3 will cause irreparable injury to the other for which monetary damages are not an adequate remedy. Accordingly, either party may be entitled to seek injunctions and other equitable remedies in the event of such breach by the other.
8.4 Miscellaneous. This Agreement constitutes the final agreement between the parties with regard to the subject matter herein, and supersedes and cancels all prior negotiations, understandings, correspondence and agreements, oral and written, express or implied between the parties with regard to the subject matter herein. No waiver, amendment or modification of any provision of this Agreement will be effective unless it is in a document that expressly refers to this Agreement and is signed by both parties. Failure or delay by either party in exercising any rights or remedy under this Agreement will not operate as a waiver of any such right or remedy. The parties are independent contractors. Neither party will be deemed to be an employee, agent, licensee nor legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by the laws of the State of Delaware, U.S., and without regard to conflict of laws provisions. The Company may, in its sole discretion, modify or revise these Standard Terms and Conditions from time to time, and you agree to be bound by such modifications or revisions. You should periodically review the most up-to-date version.