XERB CREATOR AGREEMENT
Xerb (“The Service”) is an online portal that serves to facilitate content producers and publishers in the distribution of their works and for users to purchase digital content in a variety of formats.
This Creator Agreement set forth in this document applies to all individuals and organizations supplying content to our Xerb Service (“Creators”) and constitutes a binding, legal agreement (“Agreement”) between the Creator and Xerb. By using the Xerb Service, you accept the terms and conditions described below, and you warrant and represent that you have the legal capacity to enter into this Agreement. BY CLICKING “I AGREE”, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND, THEN DO NOT CLICK “I AGREE.”
Xerb: Xerb, LLC and its licensors, affiliates, successors and assigns.
Xerb Channel: A home page for an account of any Xerb Channel Runner. A Channel shows the account name, Content they’ve uploaded, and any user information they’ve entered.
Content: Content that is digital that may consist of spoken word audio, information, data, text, software, music, sound, photographs, graphics, video, messages or other materials.
Video Content: Content that consists of video.
Creator: Creators upload content they control to any Channel Runner(s) for inclusion on Channel Runner(s) Channel.
Channel Runner: Channel operators who enter into Channel Runner agreements with Xerb.
Gross Revenue: the monthly fee the User pays for a Channel.
Net Revenue: the monthly fee the User pays for a Channel, less any fees taken by a third party marketplace or platform. As an example, if a Xerb Channel or Content is made available through a third party marketplace or platform that takes a percentage fee, that fee will be deducted to calculate Net Revenue.
Channel Revenue: an amount equal to 70% of the Net Revenue.
User: Any person who views content on any Xerb Channel.
Creator Agreement Terms
In consideration of the mutual promises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, You hereby agree as follows:
- License. As a Creator distributing your work through Xerb’s platform, you retain your copyright in the Content. However, by submitting Content to Xerb and any Xerb Channel, you hereby grant Xerb a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Xerb’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access and display your Content through the Service, and to use such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that Xerb may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable
- Xerb reserves the right to limit downloads and/or streams of such content or remove content entirely due to cost associated with hosting, indexing and displaying such content. In addition, Xerb reserves the right to display advertising before, after or in conjunction with the distribution of Content that is freely available. Creator and its licensees shall retain full control and ownership of, and absolute liability for all content contained and uploaded to any Xerb Channel. This shall include creation, procurement, uploading, ongoing management and the look and feel of the Channel. Xerb retains the right to alter design or layout of the Channel. Xerb retains the right to remove any content from a Xerb Channel as outlined in this Agreement.
- As a Creator distributing Content through Xerb, you represent and warrant that the Content:
- Is owned by you, or to the extent owned by someone else, that you have obtained that party’s express permission to provide the Content to Xerb for use, copying and distribution under the license in this Agreement;
- Does not violate any copyright, trademark, trade secret or other intellectual property rights of any third party;
- Does not invade any individual’s right of privacy or publicity;
- Does not contain material that is unlawful, obscene, defamatory, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable, Does not include malicious code, which includes, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information;
- Does not break the law, facilitate the breaking of the law, or violate any applicable regulation or Xerb’s rules or policies;
- Does not offer or disseminate fraudulent goods, services, schemes, or promotions, or promote domain names, URLs, or hyperlinks that constitute commercial content such as that found in advertising, promotions, or solicitations;
- That if any of the above representations and warranties set forth directly above are not true, that you will indemnify Xerb, their employees, representatives, affiliates, partners or assigns and hold them harmless for any such damages resulting therefrom, including compensation for their attorney’s fees,court costs or any other expenses related to such breach of this agreement.
- You agree that to the best of your knowledge, all purported factual information in the Content you upload is true and accurate, and the use of any information in the Content will not result in personal injury to any user. Creators are prohibited from using Xerb to impersonate another person or entity or to forge any e-mail communication or message. Despite all this, Xerb cannot guarantee the accuracy, integrity or quality of Content.
- As a Xerb Creator, you may submit Content to the Xerb Service, including but not limited to videos and user comments. You understand that Xerb does not guarantee any confidentiality with respect to any Content you submit.
- You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Xerb Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Xerb all patent, trademarks, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
- You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Xerb all of the license rights granted herein.
- Xerb does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Xerb expressly disclaims any and all liability in connection with Content. Xerb does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Xerb will remove all Content if properly notified if it is shown that such Content infringes on another’s intellectual property rights. Xerb reserves the right to decide whether Content violates this agreement or its Terms of Service for reasons other than copyright infringement, such as, but not limited to, any illegal content, pornography, obscenity, or excessive length. Xerb is a private service and may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user’s account for submitting such material in violation of these Terms of Service without prior notice.
- License to Other Users: You further grant all Users of the Xerb Service permission to view or download your videos for their personal, non-commercial purposes. This includes the right to copy and make derivative works from the videos solely to the extent necessary to view the videos, and for use solely within the Xerb Service. The foregoing licenses are in addition to any license you may decide to grant (e.g., a Creative Commons license).
- Duration of Licenses: The above licenses will continue unless and until you remove your videos from the Xerb Service, in which case the licenses will terminate within a commercially reasonable period of time. Notwithstanding the foregoing, the license for legal archival/preservation purposes will continue indefinitely. Please note that removed videos may be cached in search engine indices after removal and that Xerb has no control over such caching.
- Non-video Content. As between you and Xerb, you own all non-video content that you submit to the Xerb Service. You grant Xerb and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your non-video content. In addition, you waive any so-called “moral rights” in your non-video content. You further grant all Users of the Xerb Service permission to view your non-video content for their personal, non-commercial purposes. If you make suggestions to Xerb on improving or adding new features to the Xerb Service, Xerb shall have the right to use your suggestions without any compensation to you.
- Any Channel Runner may accept or reject submission requests from Creator, and Creator will determine whether to accept or reject requests from Channel Runners to have their content added to Channel Runner’s Channel.
- To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Xerb, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
- Payments/Channel Views
- As of the Effective date and throughout the Term of this Agreement, all Video Content on any Channel Runner’s Channel shall be included and entitled to receive any and all payments in connection therewith directly from Xerb. This shall include all Video Content made available on the Channel through any means (streaming VOD, “live-streaming,” or other models of delivery as may be made available by Xerb) and through any device able to view content on the channel.
- VOD CONTENT. For each piece of Creator’s Video Content that is available in streaming VOD format on a Xerb Channel hereunder, Creator shall be entitled to receive payments from Xerb, as follows:
- The Net Revenue is divided between the Xerb Share of 30% and the Channel Revenue Share of 70%.
- Of the Channel Revenue Share, the Channel Runner shall decide a percentage which they will keep, and the Creator’s proportion of the remainder will be calculated by dividing their time-weighted average length of Video Content into the total time-weighted average length of Video Content on the Channel.
- The time-weighted average length of Creator’s Video Content is calculated by multiplying the length of each piece of Video Content by the number of full days it was available on the Channel, divided by the number of days in the month. The total time-weighted average length of all Video Content on the Channel is calculated by applying this formula to all Video Content available on the channel.
- All payments will be sent on a monthly basis within 30 days after the end of the month. A payment is considered sent once Xerb has initiated the transaction or mailed payment, and therefore not necessarily when Creator receives payment.
- Xerb may pay Creator via check, ACH, or any other mutually agreed-upon form. Any payment transaction fees, stop-payment fees, withdrawal fees, or delivery fees are the sole responsibility of the Creator, and if Xerb pays any of these fees they will be considered fully reimbursable or deductible from current or future payments.
- If Creator is owed less than $50 at the end of a month, Xerb may, in its sole discretion, defer payment until the month in which the cumulative amount owed exceeds $50.
- It is the sole responsibility of the Creator to maintain up-to-date payment information. If Xerb is unable to pay Creator due to outdated or incorrect payment information, or any block or hold, or if payment is returned or rejected for any reason, payment will be deferred until the end of the month in which the Creator corrects the information or remedies the block or hold.
- Interest will not accrue on any payments, including deferred payments, made pursuant to this agreement.
- Changing Method of Accounting and Revenue Sharing.
- Channel Runner may change the price of a Channel. Xerb shall inform Creators of such changes.
- Channel Runner may change their percentage share of the Channel Revenue. If Channel Runner increases their share, Xerb will inform the Creators at least 30 days before the change takes effect. If Channel Runner decreases their share, the change may take effect immediately and no notice to Creators is required.
- Removal of Content.
- Channel Runner may remove any content from their Channel and Creators may withdraw their content from a channel at any time without notice.
- In the event a Channel Runner or Creator does something which Xerb deems to be egregious which could negatively impact the other party, Xerb may, in its sole discretion, and with or without a request from the affected party, choose to immediately remove the Content on a temporary or permanent basis.
- Creator understands that illegal, obscene and pornographic content are not permitted on Channels. Content which is intended to promote hatred or discrimination is also not permitted. Xerb shall determine in its sole discretion when Content should be removed for any reason in this section. Creators and Channel Runners may appeal the decision to remove the Content by submitting a written explanation as to why the content should not be removed to Xerb. Upon written appeal of a decision to remove content Xerb shall determine, in its sole discretion, whether there will be a reinstatement of appealed content. Content that is deemed in violation will not be entitled to receive remuneration. Content that is removed but then reinstated will not receive compensation for the time that it was made unavailable.
- VOD CONTENT. For each piece of Creator’s Video Content that is available in streaming VOD format on a Xerb Channel hereunder, Creator shall be entitled to receive payments from Xerb, as follows:
- Term of Agreement. This Agreement is effective until terminated by giving 30 day’s written notice to Xerb. Xerb may terminate or suspend this Agreement immediately if in Xerb’s sole judgment Creator breaches any of the terms and conditions of this Agreement. All provisions of this Agreement relating to payment, disclaimers, limitation of liability, indemnification, confidentiality, and proprietary rights shall survive termination or expiration of this Agreement.
- Operation of Service. Xerb may at its discretion suspend or terminate operation of the Service for maintenance or other reasons. In addition, for maintenance reasons, because of technical issues, or for other reasons, we may make Xerb unavailable from time to time. Xerb makes no commitment, warranty or guarantee that the Service will operate in a timely, uninterrupted or error-free manner, or that the Service will meet Creator’s purposes. Xerb may also in its discretion modify the features, availability, operation and/or look and feel of the Service from time to time without notice to Creator.
- Disclaimers. The Xerb Service and all software, services, information, materials, forums, tools and Content provided or offered on the Service are provided or offered by Xerb and its third-party licensors and content providers on an “as-is”, “as-available” basis, without representation or warranty of any kind by Xerb, including but not limited to the implied warranties of merchantability, non-infringement and fitness for a particular purpose.
- Limitation of Liability. In no event shall Xerb or any of its officers, employees, directors, affiliates, agents or third-party licensors and content providers be liable to Creator or anyone else for any special, consequential, indirect, cover, punitive, incidental or similar damages (including, without limitation, lost profits, lost sales, or lost business) directly or indirectly related to or arising out of the Service, Content on the Service, or any transaction entered hereunder, whether in contract, tort or otherwise, even if Xerb or one of its officers, employees, affiliates or agents has been advised of the possibility of such damages. Any action under this Agreement must be commenced within one (1) year after such cause of action occurs.
- Standards. Creator shall conduct business in a manner that reflects favorably at all times on the Services and the good name, goodwill, and reputation of Xerb. Creator shall avoid deceptive, misleading, or unethical practices that are or might be detrimental or disparaging to Xerb or its services. Creator shall make no covenants, representations, warranties or guarantees to end Users or to the trade with respect to the specifications, features, or capabilities of the services which are inconsistent with the literature distributed by Channel Runner, or which are inconsistent with the then current Xerb End User Agreement. Channel Runner will notify Xerb immediately in writing of any knowledge or suspicion of any violations of Xerb’s patents, copyrights, trademarks, or other proprietary rights.
- Proprietary Rights. Creator acknowledges and agrees that all applicable copyrights, trade secrets, patents and other intellectual and property rights in the Services and all other items provided hereunder are and remain in Xerb. In addition, the overall look and feel and the compilation of all materials and content on Service are owned by Xerb. It is expressly understood that no title to or ownership of the Services, or any part thereof is hereby transferred to Creator. Creator shall not reverse engineer, decompile, disassemble or otherwise derive source code from the Services. All rights not expressly granted herein are reserved to Xerb.
- Trademarks. Xerb authorizes Creator to use Xerb’s current and future trademarks, service marks and trade names (“Marks”) solely in connection with the marketing and distribution of Services and Content pursuant to this Agreement.
- Any correspondence or notifications Xerb makes pursuant to this agreement may be made via any physical or digital written form, including but not limited to postal service, email, and notifications delivered via the Service.
- No amendments or modifications may be made to this Agreement except as set forth in the Agreement and Amendments section below or in a written document, agreed to by both parties.
- This Creator Agreement and all rights appurtenant hereto shall be fully transferable or assignable by Xerb, in whole or in part, by operation of law, by virtue of an acquisition or merger of Xerb, or otherwise, without any consent of Creator. Xerb without any additional notice or consent on the part of Creator may enter into any agency or sub-distribution or super distribution agreements with respect to all or a portion of the Content or other materials of any Creator.
- Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective Parties hereto.
- Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
- This Agreement is governed by the laws of the State of New Mexico, without regard to its choice of law provisions. The parties agree that any dispute involving Xerb related to this Agreement or the Xerb Service that cannot be settled by good faith negotiation shall be submitted to arbitration in accordance with the rules of the American Arbitration Association. The location of the arbitration shall be in Santa Fe, New Mexico, United States of America. The arbitration shall be conducted by a single arbitrator with experience in computer/technology matters and in the publishing industry. The decision of the arbitrator shall be legally binding and shall be enforceable in any court of competent jurisdiction.
- Each party shall be excused from performance and shall not be liable for any delay caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors or suppliers, except for obligations to make payments hereunder. These contingencies include, but are not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure or delay in transportation, act of any government affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God.
- This Agreement does not create a partnership nor does it designate either party as the agent, employee, legal representative, partner or joint venture of the other party for any purpose whatsoever.
- Creator agrees that it has the full power and authority to enter into and perform in accordance with the terms of this Agreement. Creator agrees that this Agreement is a legal, valid and binding obligation, and that its terms and conditions can be enforced. Xerb may change the terms in this Agreement from time to time. When the terms are changed, Xerb will notify Creator. Creator agrees to review changes to the terms of this Agreement. If Creator does not agree to be bound by any future changes, you should promptly notify Xerb and discontinue your use of the Service. If you use the Service after Xerb has notified you of a change to these terms, you are agreeing to be bound by all of the changes.
- Taxes. Creators shall be solely responsible for payment of taxes and any and all tax liability resulting from payments made to them by Xerb for content received pursuant to the terms of this agreement, whether or not a 1099 is received from Xerb. Creators shall hold Xerb harmless and indemnify them for Creator’s failure to pay any taxes owed to any governmental authority on revenue received pursuant to this agreement.