Terms of Service
PUBLISHING TERMS OF SERVICE
Last Updated: July 20, 2021
This Agreement changed on the date listed above.
This Tales Independent Publishing Terms of Service (this “Agreement”) is a binding agreement between the individual or entity identified in your Tales Writer account (“Author” or “you”) and Tales, Inc. (“Publisher” or “we”).
Publisher owns and operates Tales, an online platform that allows writers to pilot episodic stories (“Publisher Platform”), which Publisher Platform includes various tools for creating, editing, and visualizing branching narratives (“Tools”).
Author is interested in submitting certain creative works (“Works“) for Publisher to select for further publishing and distribution on the Publisher Platform.
2. Agreement Acceptance & Amendment
You accept this Agreement and agree to be bound by its terms by either (a) checking agree or accept where you’re given the option to do so or (b) by using the Publisher Platform, or any part of it. If you don’t accept the terms, you are not entitled to use the Publisher Platform. Publisher has a variety of other agreements. If Works is associated with multiple agreements, those agreements will supersede this Agreement.
The terms of this Agreement will need to change over time as well. We reserve the right to change the terms of this Agreement at any time in our sole discretion. We will give you notice of the changes by posting new terms in place of the old at https://taleswriter.com/account/terms with a revision date indicated at the top or by sending an email to the email address then registered for your account. Here are the rules for when changes will be effective and binding on you:
Changes to terms of this Agreement will be effective on the date we post them, unless we otherwise provide at the time we post the changes. You are responsible for checking for updates and your continued use of the Program after we post changes will constitute your acceptance of the changes. If you do not agree to the changes, you must withdraw your Works from further distribution through the Publisher Platform and terminate your use of the Publisher Platform.
3. Term & Termination
This Agreement to commence on the effective date and to continue until it is terminated in accordance with the terms of this Agreement (“Term”). Publisher may terminate this Agreement for any reason in our discretion. Author is entitled to terminate at any time by providing us a notice of termination, in which event we will cease selling the Works within 180 days from the date the Publisher was provided notice of termination.
Sections (2. Agreement Acceptance & Amendment), (3. Term & Termination), (4. Survival), (6. License Grants), (7. Royalty), (8. Payment), (9. IP Ownership), (12. Confidential Information), (14. No Third-Party Rights), (16. Non-Solicitation), (17. Indemnification), (18. Limitation of Liability), (19. Force Majeure), and (20. Miscellaneous) will survive the termination of this Agreement. All liabilities that accrued prior to termination will survive termination of this Agreement.
All rights to Works acquired by customers will survive termination.
5. Account Eligibility and Registration
You represent that you are at least 18 years old (or the age of majority where you reside, whichever is older) and that you are able to form a legally binding contract. If you are between the ages of 13 and 18 (between 16 and 18 in the EU/EEA), your legal guardian has reviewed and agrees to this Agreement.
You must ensure that all information you provide in connection with establishing your Agreement, such as your name, address and email, is accurate when you provided it, and you must keep it up to date as long as you use the Publisher Platform. You may maintain only one account at a time. If we terminate your account, you will not establish a new account. You will not use false identities or impersonate any other person or use a username or password you are not authorized to use. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify account information you provide. You also consent to us sending you emails relating to the Agreement and other publishing opportunities from time to time.
You are solely responsible for safeguarding and maintaining the confidentiality of your account username and password and are responsible for all activities that occur under your account, whether or not you have authorized the activities. You may not permit any third party to use the Program through your account and will not use the account of any third party. You agree to immediately notify Publisher of any unauthorized use of your username, password or account.
6. License Grants
Author hereby grants to Publisher a worldwide, irrevocable, transferable, perpetual, and sublicensable right (“License“) to market, advertise, promote, publish, copy, reproduce, and distribute Works. The rights granted include the right to (a) reproduce, index, and store any Work digitally, including in reformatted, converted, and encoded manner; (b) market, transmit, display, perform, distribute, sell, and otherwise digitally make available all or any portion of the Works through the Publisher Properties, for end users to view, download, access, copy, print, and annotate; and (c) permit end users to “store” any Work that is purchased from Publisher (“Virtual Storage”), and to access and re-download such Work from Virtual Storage at any time after the purchase.
“Publisher Properties” means the Publisher Platform, and any web-site, application or online point of presence, on any platform, (a) that is owned or operated by or under license by Publisher or co-branded with Publisher, or (b) through which any Work or other Publisher products or services are made available for sale, syndicated, or merchandised.
Author will receive Royalties from Publisher calculated by the Revenue Share multiplied by the value of virtual items (e.g. Keys and Gems) spent to access the Works. We have sole and complete discretion to set the virtual currency amounts charged in the Works.
- “Revenue Share” means 35% of the Net Revenue received by Publisher during the Term.
- “Gross Revenue” means all virtual items (e.g., keys and gems) spent by end users for access to the Works, multiplied by the List Price of the item.
- “List Price” for Keys is $0.25/Key and for Gems is $0.13/Gem.
- “Net Revenue” means Gross Revenue, less costs and expenses incurred by Publisher for the creation, development, and production of the Interactive Works (including costs and expenses for artistic and creative works and third party license fees), sales commissions or other fees paid (including, payment gateway fees, certification costs, and wireless, telecommunication, application store, network operator, and other distribution channel costs), and any other fees and expenses incurred by Publisher relating to the publishing and distribution of the Interactive Works (collectively “Production & Distribution Expenses”). For clarity, channel costs include application store-related fees, costs, and expenses incurred by Publisher relating to the publishing and distribution of the Interactive Works, including, in the case of distribution via the Apple App Store, 30% of gross revenue collected by Apple for the relevant Interactive Work, and in the case of distribution via any Android app store, 30% of the gross revenue collected by the application store operator. Publisher may adjust channel costs deductions to reflect actual changes in application store-related fees upon prior notice to Author.
We are solely responsible for processing payments, payment collection, requests for refunds and related customer service, and will have sole ownership and control of all data obtained from customers and prospective customers in connection with the Agreement.
Publisher will pay Author the applicable Royalties on a quarterly basis. However, if the amount of the Revenue Share for any quarter is below $250, such amount will not be paid and will roll over into next quarter until the cumulative unpaid balance exceeds $250. All payments will be made in U.S. dollars and Author is responsible for any transaction fees associated with payments.
We can withhold Royalties and offset them against future payments as indicated below. Our exercise of these rights does not limit other rights we may have to withhold or offset Royalties or exercise other remedies.
- If we pay you a Royalty on a sale and later issue a refund, return, or credit for that sale, we may offset the amount of the Royalty previously paid for the sale against future Royalties, or require you to remit that amount to us.
- If a third party asserts that you did not have all rights required to make the Works available through the Program, we may hold all Royalties due to you until we reasonably determine the validity of the third party claim. If we determine that you did not have all of those rights or that you have otherwise breached your representations and warranties or our Content Guidelines with regard to the Works, we will not owe you Royalties for the Works and we may offset any of those Royalties that were previously paid against future Royalties, or require you to remit them to us.
- Upon termination of this Agreement, we may withhold all Royalties due for a period of three months from the date they would otherwise be payable in order to ensure our ability to off-set any refunds or other offsets we are entitled to take against the Royalties.
- If after we have terminated your account you open a new account without our express permission, we will not owe you any Royalties through the new account.
9. IP Ownership
Publisher will own the Publisher Properties, and all assets (including artwork, sound, music, icons, and user interface elements) made by or on behalf of Publisher for the Works, including all intellectual property and proprietary rights therein and thereto (collectively, the “Assets“). These Assets may not be reproduced without our written approval. Author will own all intellectual property and proprietary rights in and to the Works. This Agreement does not grant you any license or other rights to any intellectual property or technology owned or operated by us
10. Content Guidelines
You must ensure that all Works content is in compliance with Apple’s App Store (available at developer.apple.com/app-store/review/guildelines/#objectionable-content) at the time you submit it to us. If you discover that content you have submitted does not comply, you must immediately withdraw the content by un-publishing it or by re-publishing content that complies. We reserve the right to rollback your Works to a previous version.
We are entitled to remove or modify the metadata and product description you provide for your Works for any reason, including if we determine that it does not comply with our content requirements. We may also remove all or any part of your Work’s cover art for any reason, including if we determine that it does not comply with our content requirements. You may not include in any Works any advertisements or other content that is primarily intended to advertise or promote products or services. You must ensure that all metadata you provide to us is current, complete, and accurate. If you discover that any metadata you have provided to us for any Works is inaccurate or incomplete, you must promptly submit corrected metadata to us.
We are entitled to determine what content we accept and distribute through the Publisher Platform in our sole discretion. If we request that you provide additional information relating to your Works, such as information confirming that you have all rights required to permit our distribution of the Works, you will promptly provide the information requested, and you represent and warrant that any information and documentation you provide to us in response to such a request will be current, complete, and accurate. You authorize us, directly or through third parties, to make any inquiries we consider appropriate to verify your rights to permit our distribution of the Works and the accuracy of the information or documentation you provide to us with respect to those rights.
11. Advertising and Promotion
Publisher will have sole discretion in determining all marketing and promotions related to the sale of the Works and may, without limitation, market and promote the Works by making Episodes available to prospective customers without charge and by permitting prospective users to see excerpts in marketing materials and search results. Publisher will not owe Author any fees for any marketing or promotional efforts. Author acknowledges that Publisher has no obligation to market, distribute, or offer for sale any Works, or to continuing marketing, distributing or selling any Works after they have commenced doing so. Publisher will have the right to use, and to license others to use, Author’s name, image, likeness and biographical material for advertising, promotion, and other exploitation of the Works and the other rights granted under this Agreement.
12. Confidential Information
“Confidential Information” means any proprietary information of Publisher disclosed to Author that is in written, graphic, machine readable, or other tangible form and is indicated or reasonably expected to be as “confidential” or “proprietary”. Confidential Information will not include any information that: (a) was publicly known and made generally available prior to the time of disclosure; (b) becomes publicly known and made generally available after disclosure by Publisher through no action or inaction of Author; (c) is already in the possession of Author at the time of the initial disclosure; (d) is obtained by Author from a third party without a breach of that third party’s confidentiality obligations; or (e) is independently developed by Author without use of or reference to Publisher’s Confidential Information.
Author will: (i) treat as confidential all Confidential Information; (ii) not disclose that Confidential Information to any third party; and (iii) will not use the Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement.
In addition, Author also recognizes and agrees that Author has no expectation of privacy with respect to Publisher’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that Author’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.
13. Representations & Warranties
Each party represents and warrants that: (a) the execution and delivery of this Agreement by such party has been duly and validly authorized; (b) this Agreement constitutes a valid, binding, and enforceable obligations of such party; and (c) it will comply with all applicable laws, rules, and regulations in performing under this Agreement.
In addition, Author will represent, warrant, and covenant that:
- All Works created or submitted by Author will be an original work of Author;
- It has and will have all requisite rights to fully perform its obligations under this Agreement and to grant to Publisher all rights granted under this Agreement free and clear of all agreements, liens, adverse claims, encumbrances, and interests of any person or entity;
- Neither the Works, any element thereof, nor any exercise by Publisher of any of the rights granted in the Works will infringe, misappropriate, or violate any rights (including the intellectual property rights) of any third party;
- Author is not involved in any legal proceeding relating to any Works, Author has not received notice of a claim relating to any Works, and Author is not aware of any facts or circumstances that might lead to a legal proceeding relating to any Works.
14. No Third-Party Rights
This Agreement and the services contemplated hereunder are personal to Author and Author will not have the right or ability to assign or transfer any rights or obligations under this Agreement without Publisher’s prior written consent.
The payment amounts are tax inclusive and each party will be respectively responsible for its own taxes in accordance with applicable laws. If either party is legally obligated to withhold any taxes (including value added taxes, income taxes, and surcharges) from payments to be made to the other party, such paying party will be entitled to do so and pay the relevant taxes withheld to the relevant tax authority in accordance with the applicable tax regulations. If any tax is withheld by a party, such withholding party will provide the other party receipts or other evidence of such withholding or payment to the appropriate tax authorities.
Author will not, during the Term and 24 months thereafter, without Publisher’s prior written consent, solicit to employ or solicit to engage as an independent contractor or consult, any employee or contractor of Publisher.
Author will indemnify, defend, and hold harmless Publisher and its affiliates and their respective directors, officers, and employees from and against all losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with any third party claim relating to: (a) any breach by Author of the representations or warranties made by Author in this Agreement; (b) any violation or claimed violation of a third party’s intellectual property rights by the Works as used in accordance with this Agreement; or (c) Author’s gross negligence or willful misconduct.
Publisher will indemnify, defend, and hold harmless Author from and against all losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with any third party claim relating to: (a) any breach by Publisher of the representations or warranties made by Publisher in this Agreement; or (b) Publisher’s gross negligence or willful misconduct.
The indemnified party will promptly notify the indemnifying party of any claim that is subject to this Section 17. The indemnified party will have the right to employ separate counsel and participate in the defense of claims. The indemnifying party will have the sole authority to defend, compromises settle, or otherwise dispose of claim, but the indemnifying party may not agree to any disposition or settlement of a claim that admits liability or imposes duties of performance or payment on the indemnified party without the indemnified party’s prior written consent.
18. Limitation of Liability
Except as expressly provided in this Agreement, neither Publisher nor any of its affiliates makes implied representations or warranties of any kind, including implied warranties of merchantability, fitness for a particular purpose, quality, or accuracy.
Notwithstanding anything to the contrary contained in this Agreement, Publisher will not, under any circumstances, be liable to Author for consequential, incidental, special, punitive, or exemplary damages arising out of or related to the transaction contemplated hereunder, including lost profits or loss of business.
Under no circumstances will Publisher or any of its affiliate’s total liability of all kinds arising out of or related to this Agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed $10,000.
Each provision of this Agreement that provides for a limitation of liability or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if these provisions fail their essential purpose.
19. Force Majeure
Publisher will not be liable to Author for any failure or delay in the performance of its obligations under this Agreement caused by any event or circumstance beyond its control, including, but not limited to, denial-of-service attacks, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, and labor conditions.
This Agreement will be governed and construed in accordance with the laws of California, including all matters of construction, validity, and performance, in each case without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy, or claim arising in any way out of or in connection with this Agreement, including the existence, validity, interpretation, performance, breach, or termination of this Agreement, or any dispute regarding pre-contractual or non-contractual rights or obligations arising out of or relating to it will be referred to and finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration in force when the notice of arbitration is submitted (“Rules”). The arbitration tribunal will consist of three arbitrators to be appointed in accordance with the Rules, which Rules are deemed to be incorporated by reference into this section and as may be amended by the rest of this section. The seat of arbitration will be San Francisco or any other place on which the parties agree. Judgment upon the award rendered by the arbitration tribunal may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
No single or partial exercise of any right or remedy will preclude any other or further exercise of any other right or remedy. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to that subject matter. This Agreement may not be amended except by a writing signed by the parties.