This Service Agreement ("Agreement") governs the provision of the Talentir Business services. It is entered into between:
Talentir GmbH, a company registered in Austria with company number FN569487g, having its principal place of business at Parkring 20/1, 1010 Wien, Austria (“Talentir”, “we”, “us”, or "our"); and
You, the business entity that accepts this Agreement and uses the Services (“Client”, “you”, or "your").
Talentir and Client are hereinafter collectively referred to as the "Parties" and individually as a "Party."
This Agreement becomes effective on the date the Client accepts it and creates a Talentir Business account (the "Effective Date"). By accepting this Agreement and using the Services, the Client confirms that the individual accepting is authorized to bind the Client and agrees to be bound by this Agreement. No handwritten or separately executed signature is required.
A. Talentir has developed and operates a platform, Talentir Business, to act as a Creator service intermediator, facilitating engagements and associated Payouts from clients to creators, with Talentir acting as merchant of record (the "Services").
B. Client wishes to use the Services to manage engagements with and execute Payouts to its Creators by utilizing its own self-custodial wallet in conjunction with the Platform.
C. Talentir is willing to provide the Services to the Client, and the Client is willing to procure the Services from Talentir, subject to the terms and conditions of this Agreement.
Now, therefore, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
"Client Wallet": A self-custodial digital wallet established, funded, maintained, and operated entirely by the Client, under the Client's sole control, holding funds in supported currencies. Talentir does not operate, manage, or have direct access to or custody of the funds within this Client Wallet. For the purposes of the Services, the Client authorizes Talentir, via the Platform and up to, but not exceeding, the Daily Allowance set by the Client and valid Payout instructions, to initiate debits against the balance of this Client Wallet solely for the execution of Payouts and collection of applicable Fees as outlined in this Agreement. The Client retains ultimate ownership and control of the funds in the Client Wallet at all times, with Talentir's interaction being strictly limited to effectuating authorized transactions based on Client instructions and the Daily Allowance.
"Creator": An individual or entity engaged by the Client for whom services are intermediated and Payouts are to be made using the Services.
"Creator Data": Information related to Creators provided by the Client to Talentir for the purpose of intermediating services and facilitating Payouts, including but not limited to name, contact details, and payment information.
"Daily Allowance": The maximum aggregate amount specified by the Client through the Platform that Talentir is authorized to debit from the Client Wallet for Payouts on behalf of the Client on any given 24-hour period.
"Fees": The charges payable by the Client to Talentir for the use of the Services, as displayed in the Client's Talentir Business dashboard. The Fees may comprise any one or more of the Volume-Based Fee, the Fixed Fee, and the Minimum Fee, in any combination, each as defined in Section 4.1.
"Intellectual Property Rights": All patents, copyrights, moral rights, trademarks, trade names, service marks, trade secrets, and any other forms of intellectual or industrial property rights, and all applications, registrations, renewals, extensions, and reissues of the foregoing, in any jurisdiction.
"Payout": The transfer of funds by Talentir (acting as merchant of record), upon Client instruction (via Platform mechanisms), initiated as a debit from the Client Wallet to Talentir and subsequently onward remitted by Talentir to the relevant Creator, as remuneration for services intermediated through the Platform. Where currency conversion is required, Talentir will apply prevailing market rates derived from on-chain data sources to secure the best pricing for the conversion. All foreign exchange costs and risks shall be borne by the Client unless otherwise agreed in writing.
"Platform": The Talentir Business software, interfaces, APIs, and systems provided by Talentir to deliver the Services, which interact with the Client Wallet based on the Client's authorizations.
"Services": The Talentir Business services for intermediating Creator engagements and facilitating associated Payouts, as described herein, where Talentir acts as the merchant of record by debiting the Client Wallet based on the Client's instructions and Daily Allowance. This includes but is not limited to providing the Platform for Client Wallet interaction, Daily Allowance management, Payout execution, and associated invoicing.
"Confidential Information": Any information disclosed by one Party to the other Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects, which is designated as "Confidential," "Proprietary," or some similar designation, or which should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. This includes the terms of this Agreement.
Talentir grants Client a non-exclusive, non-transferable, revocable right to access and use the Platform and Services during the Term, solely for Client's internal business purposes of managing Creator engagements and effectuating Payouts to its Creators through Talentir as an intermediary, subject to the terms of this Agreement.
The Client is solely responsible for establishing, funding, and maintaining its Client Wallet. Talentir will provide specifications or instructions on how the Client can configure its Client Wallet, or provide the necessary information to the Platform, to enable Talentir to initiate authorized debits for Payouts and Fees in accordance with this Agreement. The Client is responsible for ensuring its Client Wallet has sufficient cleared funds.
The Client shall have the ability to set and adjust a Daily Allowance through the Platform. This Daily Allowance dictates the maximum aggregate amount Talentir is authorized to debit from the Client Wallet for Payouts on any given 24-hour period. Talentir will only initiate debits for Payouts up to the limit of the set Daily Allowance and only if sufficient cleared funds are reflected as available from the Client Wallet via the Platform's information.
a. Upon valid instruction from the Client (which may be automated through agreed integrations or manual instruction via the Platform), Talentir, acting as merchant of record, will (i) debit the specified Payout amount from the Client Wallet to Talentir's designated settlement account and (ii) once those funds are settled with Talentir, disburse the corresponding amount to the designated Creator via the Creator's chosen payout method.
b. Talentir will use commercially reasonable efforts to execute Payouts instantly upon valid instruction. Talentir commits to initiate Payout processing (i.e., initiating the debit from the Client Wallet and instruction to the relevant financial network) to the Creator's chosen payout method within seventy-two (72) hours after the Creator claims the Payout via the Platform by selecting a payout method and completing any required payout steps (the "Claim Time"), provided sufficient funds are available in the Client Wallet (as ascertainable by Talentir through the Platform) and the Daily Allowance is not exceeded. This commitment represents an obligation of diligent performance rather than a guarantee of result. Delays caused by underlying banking systems, the Client Wallet's operational characteristics, or third-party financial infrastructure utilized for the onward transfer are outside Talentir's direct control, but Talentir will endeavor to facilitate prompt resolution. In the event of system-related delays of more than three (3) days, Talentir must inform the Client immediately.
Payout Guarantee and Fee Waiver. If the disbursement to the Creator’s payout method is not completed within seventy-two (72) hours after the Claim Time, Talentir shall not charge any Fees associated with that Payout and will credit or refund any such Fees if already charged; provided that this waiver does not apply where the delay results from (i) insufficient funds in the Client Wallet, (ii) the Daily Allowance being exceeded or not increased in time, (iii) inaccurate or incomplete Payout instructions or failure by the Creator to complete payout steps, (iv) legally required holds or compliance reviews, (v) banking or payment network delays or failures outside Talentir’s reasonable control, or (vi) Force Majeure (Section 13.2).
c. Creators will be offered various payout options (e.g., bank transfer, digital wallets, other methods as introduced by Talentir) depending on their geographic location and the options made available by Talentir on the Platform. The availability of specific payout options is subject to change, provided that Talentir gives thirty (30) days' prior written notice to the Client of any material changes to payout options that would affect the Client's operations. The Client shall have the right to terminate this Agreement with thirty (30) days' notice if such changes materially and adversely affect its ability to serve its Creators. Talentir reserves the right to charge additional fees for payout methods other than bank transfer/IBAN, with such fees to be communicated to the Client in writing at least thirty (30) days prior to implementation. These additional fees shall be separate from and in addition to the standard Fees displayed in the Client's Talentir Business dashboard.
a. Talentir acts as the merchant of record for the Payout transactions effectuated through the Services. This means Talentir is the entity contracting with the Client for the Payout amount to be delivered to the Creator (funded by authorized debits from the Client Wallet) and, in turn, contracts with the Creator for the disbursement.
b. Talentir will issue an invoice to the Client for the total Payouts made to Creators (for which Talentir is the merchant of record) and any applicable Fees, in accordance with the billing cycle agreed or specified by Talentir.
c. For each Payout, Talentir will generate a self-billing invoice. This invoice will be from Talentir (acting on behalf of the Creator under a self-billing agreement, and as the payer of record to the Creator) to the Creator, for the services rendered by the Creator to the Client that correspond to the Payout amount. Talentir will obtain and maintain, prior to issuing any such invoice, the necessary authorization and agreement from each Creator for Talentir to issue such self-billing invoices on their behalf as part of the intermediation service.
The Client shall provide accurate, current, and complete information regarding itself and its Creators as required by Talentir to provide the Services, including for identity verification and compliance purposes, and to enable Talentir to act as the merchant of record for Payouts. Client is solely responsible for the accuracy and legality of all Creator Data and Payout instructions submitted to the Platform.
The Client is solely responsible for establishing, funding, maintaining, and operating its Client Wallet. Client shall ensure its Client Wallet is sufficiently funded with cleared funds at all times to cover all anticipated Payouts it instructs Talentir to make (as merchant of record by debiting the Client Wallet) and all applicable Fees. The Client is responsible for setting and managing appropriate Daily Allowances. Talentir shall not be liable for any failure or delay in making Payouts due to insufficient funds in the Client Wallet, issues with the Client Wallet's operation, or if a Payout instruction would exceed the set Daily Allowance. Client acknowledges that Talentir relies on the information available via the Platform regarding the Client Wallet's balance and status.
The Client shall comply with all applicable laws and regulations in connection with its use of the Services, its engagement of Creators, its business operations, its operation of the Client Wallet, and its obligations to Creators, including, but not limited to labor laws, tax laws, data protection laws, and consumer protection laws.
The Client is solely responsible for its contractual and other relationships with its Creators, including the terms of engagement, the nature of services provided by Creators, the determination of amounts due to them, and resolving any disputes with Creators regarding such matters. Talentir acts as a Creator service intermediary and effectuates the Payouts as described herein but is not a party to the underlying service agreement between Client and Creator, other than in its capacity as merchant of record for the Payout transaction itself.
The Client acknowledges that it has no liability for the accuracy, completeness, or legality of data entered by Creators into the Platform or for the content and accuracy of self-billing invoices issued by Talentir to Creators. Client is not responsible for any errors, omissions, or inaccuracies in Creator-provided information or in the self-billing invoices generated by Talentir on behalf of Creators.
The Client is responsible for maintaining the confidentiality of its Platform access credentials and for all activities that occur under its account, including setting and managing Daily Allowances and Payout instructions. The Client agrees to notify Talentir immediately of any unauthorized use of its account or any other breach of security.
The Client shall provide reasonable cooperation and information to Talentir as may be required for Talentir to perform the Services and comply with its own legal and regulatory obligations as a service intermediary and merchant of record.
Client shall pay Talentir the Fees for the Services as displayed in the Client's Talentir Business dashboard. The applicable fee components, rates, amounts, thresholds, and calculation methodology are set out in the dashboard. The Fees may comprise any one or more of the following components, in any combination configured in the dashboard:
a. Volume-Based Fee. A fee calculated as a percentage of the total Payout volume processed for the Client during the relevant billing period (the "Volume-Based Fee").
b. Fixed Fee. A fixed amount payable for each Billing Interval irrespective of Payout volume (the "Fixed Fee"). The Fixed Fee, if any, is charged in addition to, and independently of, the Volume-Based Fee and the Minimum Fee.
c. Minimum Fee. A minimum amount of Volume-Based Fee payable for each Billing Interval (the "Minimum Fee"). Where a Minimum Fee applies, the Volume-Based Fee payable for that Billing Interval shall be the greater of (i) the Volume-Based Fee accrued for that Billing Interval and (ii) the Minimum Fee. Any Minimum Fee collected in advance shall be credited against the Volume-Based Fee accruing during that Billing Interval, so that the Client pays no more than the greater of the two.
d. Billing Interval. The Fixed Fee and the Minimum Fee are each charged per the billing interval set out in the Client's Talentir Business dashboard, which is either monthly or annual (the "Billing Interval"). Where the dashboard specifies an annual Billing Interval, the applicable Fixed Fee or Minimum Fee is charged once per year rather than once per calendar month, and references in this Section 4 to a calendar month shall be read as references to the applicable annual period.
Fees associated with a Payout shall not be charged where waived under the Payout Guarantee in Section 2.4(b).
Talentir may, at its sole discretion, offer a reduced Volume-Based Fee rate based on the Client's Payout volume exceeding certain thresholds. Any such reduction will be communicated to the Client in writing (email to suffice) and will apply from the billing period specified in the notice. This adjustment is a discretionary discount and shall not be construed as a formal amendment to this Agreement or a waiver of Talentir's right to charge the full Volume-Based Fee rate in subsequent periods. Such adjustments do not require a formal amendment as per Section 13.5.
Notwithstanding the foregoing, no increase to any Fees, no introduction of new fees or minimums, and no change to the fee structure or calculation methodology shall be effective without the Client's prior written consent.
Talentir will collect the applicable Fees by initiating authorized debits from the Client Wallet, subject to the Daily Allowance where applicable or a separate authorization mechanism for Fees, with the timing of each component as configured in the Client's Talentir Business dashboard and as set out below. Talentir will give thirty (30) days' written notice before implementing any change to the fee collection timing or method.
a. Volume-Based Fee. Collected, as configured in the dashboard, either (i) at the time of each Payout, or (ii) in aggregate at the end of each calendar month (or other agreed billing period).
b. Fixed Fee. Collected at the beginning of each Billing Interval to which it relates.
c. Minimum Fee. Collected at the beginning of each Billing Interval to which it relates and credited against the Volume-Based Fee accruing during that Billing Interval in accordance with Section 4.1(c). Where the Volume-Based Fee is collected per Payout under (a)(i), Talentir will additionally collect only the amount, if any, by which the Volume-Based Fee accrued for the Billing Interval exceeds the Minimum Fee already collected.
For each fee transaction, Talentir will issue an invoice to the Client. The Client explicitly authorizes these Fee debits from its Client Wallet. No increase to any Fees, introduction of new fees or minimums, or change to the fee structure, rates, amounts, or calculation methodology shall be effective without the Client's prior written consent (Section 4.2).
All Fees are due as specified in the Client's Talentir Business dashboard or as per the deduction method chosen by Talentir under Section 4.3. If Fees are invoiced separately (e.g., if a debit from the Client Wallet fails), they are due within the timeframe specified in the dashboard. Only undisputed amounts that remain unpaid after Talentir has sent a written payment reminder will accrue interest at the lower of (i) the statutory default interest rate pursuant to § 456 of the Austrian Commercial Code (Unternehmensgesetzbuch - UGB) and (ii) 1.5% per month, from the day following delivery of such reminder until paid in full. Amounts disputed in good faith shall not accrue interest while the dispute is pending.
All Fees are exclusive of any applicable taxes, duties, or levies, including Value Added Tax (VAT), sales tax, or withholding taxes, imposed by any taxing authority. The Client is responsible for paying all such taxes associated with its procurement and use of the Services, excluding only taxes based on Talentir's net income. If Talentir is required by law to collect and remit any such taxes, these will be added to the Client's invoice or debited from the Client Wallet.
Each Party is solely responsible for taxes imposed on its own income, property, payroll, and other taxes arising from its business operations. Neither Party shall be responsible for the other Party’s taxes, and no Party shall withhold or deduct taxes from payments under this Agreement except as required by law.
Where a ramp-up period is set out in the Client's Talentir Business dashboard (the "Ramp-Up Period"), no Fixed Fee and no Minimum Fee shall be payable during the Ramp-Up Period, which runs from the Effective Date (or, where the applicable commercial terms are accepted after the Effective Date, from the date of such acceptance) for the number of months set out in the dashboard. The Volume-Based Fee remains payable during the Ramp-Up Period. After the Ramp-Up Period ends, the Fixed Fee and the Minimum Fee (each as applicable) become payable in full for each subsequent Billing Interval. If no Ramp-Up Period is set out in the dashboard, none applies.
This Agreement shall commence on the Effective Date and continue until terminated in accordance with this Agreement. The Trial Period and associated fee arrangements are set forth in the Client's Talentir Business dashboard. During the Trial Period, the Fees shall be waived. However, the Client remains fully responsible for funding its Client Wallet sufficiently for all Payouts made to Creators during the Trial Period.
Either Party may terminate this Agreement by providing the other Party with written notice of termination at least thirty (30) days prior to the intended termination date to allow for adequate transition of payout processes. Client may terminate immediately in the event of a material change to the Services or fee structure that is not consented to by the Client.
Either Party may terminate this Agreement with immediate effect by written notice if the other Party:
a. Commits a material breach of any term of this Agreement and (if such breach is curable) fails to cure such breach within thirty (30) days after receiving written notice of the breach from the non-breaching Party;
b. Becomes insolvent, makes a general assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated bankrupt, or has a receiver, trustee, or liquidator appointed for a substantial part of its assets.
c. Experiences performance issues that materially impair the provision or receipt of the Services (including repeated failure to execute Payouts within the timeframes in Section 2.4(b) or sustained unavailability of the Platform), in which case the non-breaching Party may terminate this Agreement with immediate effect by written notice.
Talentir may suspend access to the Services or terminate this Agreement upon written notice to the Client, if:
a. The Client fails to maintain sufficient funds in its Client Wallet for an extended period (more than seven (7) consecutive days), preventing authorized Payouts or Fee collections, despite written notifications.
b. Suspension due to suspicion. Where Talentir has reasonable grounds to suspect fraudulent, illegal, or improper activity by the Client in connection with the Services or the Client Wallet, Talentir may suspend access to the Services only after providing the Client with a written explanation of the specific grounds for suspicion and a five (5) day grace period to remedy or rebut. Suspension shall not take effect until this grace period expires without adequate remedy. Termination based solely on suspicion is not permitted unless required by law or a regulatory authority.
c. Required by law or a regulatory authority.
a. Upon termination or expiration of this Agreement for any reason:
i. Client's right to access and use the Services, and Talentir's authorization to debit the Client Wallet, shall immediately cease (except for collection of final outstanding Fees).
ii. Client shall immediately pay to Talentir all outstanding unpaid Fees accrued up to the date of termination. Talentir may, as a final authorized action, attempt to debit such Fees from any remaining balance reflected from the Client Wallet if authorized.
iii. Talentir will cease initiating any further Payouts. All funds remain in the Client's self-custodial Client Wallet.
iv. Each Party shall, upon request of the other Party, return or securely destroy all Confidential Information of the other Party in its possession or control, subject to any legal or regulatory retention obligations.
b. Termination or expiration of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination or expiration, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiration.
Client may terminate this Agreement with thirty (30) days' written notice in the event that Talentir undergoes a change of control (defined as a transfer of more than fifty percent (50%) of the voting rights or economic interests) to a direct competitor of the Client or an entity that would create a material conflict of interest for the Client.
Each Party shall have the right to set off any undisputed amounts owed to it by the other Party against any amounts it owes to such other Party under this Agreement, in accordance with §§ 1438 ff of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch - ABGB).
Talentir and its licensors retain all right, title, and interest in and to the Platform, the Services, and all related software, documentation, designs, know-how, improvements, and derivative works, including all Intellectual Property Rights therein. No rights are granted to the Client hereunder other than the limited right to access and use the Services as expressly set forth herein.
Client retains all right, title, and interest in and to its data, including Creator Data, and its Client Wallet. Client grants Talentir a non-exclusive, worldwide, royalty-free license during the Term to use, copy, transmit, store, display, and process Client Data solely to the extent necessary to provide the Services (including acting as merchant of record and service intermediator by initiating authorized debits from the Client Wallet), comply with its legal obligations, and exercise its rights under this Agreement.
If Client provides Talentir with any feedback, suggestions, or ideas regarding the Services ("Feedback"), Client hereby grants Talentir a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, and transferable license to use, modify, reproduce, distribute, display, and incorporate such Feedback into its products and services without any obligation, attribution, or compensation to Client.
Each Party (the "Receiving Party") agrees to keep confidential all Confidential Information of the other Party (the "Disclosing Party"). The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and shall not disclose such Confidential Information to any third party, except to its employees, contractors, and legal or financial advisors who have a legitimate need to know for purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those herein. The Receiving Party shall use the same degree of care to protect the Disclosing Party's Confidential Information as it uses to protect its own confidential information of like nature, but in no event less than reasonable care.
The obligations of confidentiality shall not apply to information that:
a. is or becomes publicly known through no wrongful act of the Receiving Party;
b. was in the Receiving Party's lawful possession prior to disclosure by the Disclosing Party without an obligation of confidentiality;
c. is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information; or
d. is lawfully disclosed to the Receiving Party by a third party free of any confidentiality restrictions.
A disclosure of Confidential Information that is required by law, regulation, or by a governmental or court order shall not be a breach of this Agreement, provided that the Receiving Party, to the extent legally permissible, gives the Disclosing Party prompt written notice of such requirement to allow the Disclosing Party a reasonable opportunity to seek a protective order or other appropriate remedy.
Each Party shall comply with its respective obligations under applicable data protection laws, including the General Data Protection Regulation (EU) 2016/679 ("GDPR") and the Austrian Datenschutzgesetz (DSG), with respect to the processing of personal data under this Agreement.
a. Client acts as a data controller with respect to Creator Data it provides to Talentir or instructs Talentir to collect for the purpose of providing the Services. The Client also acts as a data controller for any personal data related to its Client Wallet.
b. Talentir acts as a data processor on behalf of the Client when processing such Creator Data solely for the purpose of providing the Services (i.e., intermediating Creator engagements and facilitating Payouts by initiating authorized debits from the Client Wallet) as instructed by the Client.
c. Talentir also acts as a data controller for its own purposes, such as for its own KYC/AML compliance (as required for a merchant of record), managing its contractual relationship with the Client (e.g., invoicing), and improving its services (where legally permissible and appropriately anonymized/aggregated if necessary).
To the extent Talentir acts as a data processor for the Client, Talentir will:
a. Process personal data only on documented instructions from the Client (including as set out in this Agreement), unless required to do so by Union or Austrian law to which Talentir is subject; in such a case, Talentir shall inform the Client of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
b. Ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
c. Implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of processing, in accordance with Article 32 of the GDPR.
d. Taking into account the nature of the processing, assist the Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Client's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR.
e. Assist the Client in ensuring compliance with its obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to Talentir.
f. At the choice of the Client, delete or return all the personal data to the Client after the end of the provision of Services relating to processing, and delete existing copies unless Union or Austrian law requires storage of the personal data.
g. Make available to the Client all information necessary to demonstrate compliance with the obligations laid down in Article 28(3)(h) of the GDPR and allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client (subject to reasonable notice and confidentiality undertakings).
h. Notify the Client without undue delay after becoming aware of a personal data breach affecting Creator Data processed on behalf of the Client.
Client warrants that it has all necessary rights, consents, and legal bases to provide Creator Data to Talentir for processing in accordance with this Agreement and applicable data protection laws. Client is responsible for providing necessary privacy notices to Creators regarding the processing of their personal data by Client and Talentir in its various roles.
Talentir may engage third-party subprocessors to assist in providing the Services. Talentir shall impose on any sub-processor the same data protection obligations as set out in this Agreement and shall remain fully liable for the performance of such sub-processor's obligations. Talentir shall maintain a list of sub-processors and provide prior written notice to the Client of any addition or replacement of sub-processors. No sub-processor located outside the European Free Trade Association (EFTA) may be engaged without the Client's prior written consent.
Each Party represents and warrants that it is not subject to any EU, Austrian, or international sanctions or export controls that would prevent it from performing its obligations under this Agreement.
Each Party represents and warrants that:
a. It has the full legal power and authority to enter into this Agreement and perform its obligations hereunder; and
b. The execution and performance of this Agreement will not violate any existing agreement or obligation to which it is a party.
Talentir warrants that the Services will be provided in a professional and workmanlike manner, consistent with generally accepted industry standards for service intermediation and merchant of record activities utilizing client-controlled wallets. Talentir warrants that it will use commercially reasonable efforts to ensure the Platform is accessible and operational, subject to planned maintenance and unforeseen outages. Talentir does not warrant that the Services or Platform will be entirely error-free or uninterrupted at all times.
Client represents and warrants that:
a. All information provided to Talentir, including Creator Data and Payout instructions, is accurate, complete, and lawfully obtained, and the Client has all necessary rights and consents to provide such information and authorize Talentir to act as intermediary and merchant of record for such Payouts by initiating debits from the Client Wallet;
b. Its use of the Services and operation of its Client Wallet will comply with all applicable laws, regulations, and third-party rights;
c. It will reasonably cooperate with Talentir, upon request, in connection with Talentir obtaining Creator authorizations for self-billing as described in Section 2.5(c);
d. Its Client Wallet is and will be maintained in good standing and capable of supporting the transactions contemplated by this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TALENTIR IS NOT RESPONSIBLE FOR THE OPERATION, SECURITY, OR AVAILABILITY OF THE CLIENT WALLET ITSELF. TALENTIR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR FROM ISSUES INHERENT IN THE CLIENT WALLET OR ITS UNDERLYING FINANCIAL NETWORK, AND CLIENT ACKNOWLEDGES THAT THE SERVICES AND PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES AND EXTERNAL WALLETS. TALENTIR DOES NOT GUARANTEE THE RESULTS OR OUTCOME OF USING THE SERVICES, BEYOND THE FACILITATION OF PAYOUTS AS A MERCHANT OF RECORD ACCORDING TO VALID INSTRUCTIONS AND AUTHORIZED DEBITS FROM THE CLIENT WALLET.
Talentir will defend Client, its officers, directors, and employees against any third-party claim, demand, suit, or proceeding ("Claim") made or brought against Client alleging that Client's authorized use of the Services (as a service intermediation platform interacting with an Client-controlled wallet) as permitted hereunder infringes or misappropriates a third party's Intellectual Property Rights effective in Austria, and will indemnify Client for any damages, attorney fees, and costs finally awarded against Client as a result of, or for amounts paid by Client under a court-approved settlement of, such a Claim; provided that Client:
a. Promptly gives Talentir written notice of the Claim;
b. Gives Talentir sole control of the defense and settlement of the Claim (except that Talentir may not settle any Claim unless it unconditionally releases Client of all liability); and
c. Provides Talentir with all reasonable assistance, at Talentir's expense.
Talentir shall have no liability under this section for Claims arising from:
i. use of the Services in combination with other software, data, or services not provided by Talentir, if the infringement would not have occurred but for such combination;
ii. any modification of the Services not made by Talentir;
iii. Client's use of the Services in breach of this Agreement; or
iv. any issue arising from the Client Wallet itself.
The Client will defend Talentir, its officers, directors, and employees against any Claim made or brought against Talentir by a third party (including Creators or regulatory authorities) arising out of or relating to:
a. The Client's breach of any of its obligations, representations, or warranties under this Agreement;
b. The Client's or its Creators' violation of applicable laws or regulations;
c. Any dispute between the Client and its Creators regarding Payout amounts, underlying services, or contractual terms (excluding disputes solely and directly attributable to Talentir's proven failure to correctly act as merchant of record for a validly instructed Payout according to this Agreement);
d. The accuracy, legality, or infringement of third-party rights by Creator Data or other information provided by the Client;
e. The Client's failure to provide reasonably requested cooperation or accurate Creator contact information necessary for Talentir to obtain Creator self-billing authorizations as per Section 2.5(c); or
f. Any issues, claims, or liabilities arising from the establishment, funding, operation, security, or maintenance of the Client Wallet, or any unauthorized access to or use of the Client Wallet not directly and solely caused by a security breach of Talentir's Platform.
The Client will indemnify Talentir for any damages, attorney fees, and costs finally awarded against Talentir as a result of, or for amounts paid by Talentir under a court-approved settlement of, such a Claim, except to the extent such Claims arise from Talentir's gross negligence, willful misconduct, or material breach of this Agreement; provided that Talentir:
a. promptly gives the Client written notice of the Claim;
b. gives Client sole control of the defense and settlement of the Claim (except that Client may not settle any Claim unless it unconditionally releases Talentir of all liability); and
c. provides Client with all reasonable assistance, at Client's expense.
Notwithstanding the foregoing, each Party's total aggregate liability under this indemnification section shall not exceed the total Fees paid or payable by Client to Talentir under this Agreement during the twelve (12) months immediately preceding the date the first event giving rise to the indemnification claim occurred, except in cases of gross negligence or willful misconduct.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOST DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR CLIENT'S PAYMENT OBLIGATIONS HEREUNDER, LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, OR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE (GROBE FAHRLÄSSIGKEIT), WILLFUL MISCONDUCT (VORSATZ), OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (SECTION 7) OR DATA PROTECTION OBLIGATIONS (SECTION 8) WHERE SUCH BREACH RESULTS IN FINES OR DIRECT DAMAGES IMPOSED BY A SUPERVISORY AUTHORITY OR AWARDED TO DATA SUBJECTS, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF EUR 50,000 (FIFTY THOUSAND EUROS) OR THREE (3) TIMES THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO TALENTIR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE FIRST EVENT GIVING RISE TO THE CLAIM OCCURRED (DEFINED AS THE DATE OF THE BREACH, THE DATE OF DAMAGE, OR THE DATE OF DISCOVERY OF THE CLAIM, WHICHEVER IS EARLIEST). FOR THE AVOIDANCE OF DOUBT, THE FOREGOING CAP SHALL NOT APPLY TO DIRECT DAMAGES ARISING FROM "PAYOUT ERRORS" (MEANING ERRONEOUS, UNAUTHORIZED, DUPLICATE, OR MISDIRECTED PAYOUTS, OR FAILURE BY TALENTIR TO REMIT FUNDS TO THE CORRECT CREATOR AFTER A SUCCESSFUL DEBIT OF THE CLIENT WALLET PURSUANT TO VALID INSTRUCTIONS), WHICH SHALL BE UNCAPPED.
Nothing in this Agreement shall limit or exclude either Party's liability for:
a. Death or personal injury caused by its negligence (Fahrlässigkeit) as defined under Austrian law;
b. Fraud or fraudulent misrepresentation (Betrug); or
c. Any other liability that cannot be limited or excluded by applicable mandatory law (e.g., under the Austrian Product Liability Act - Produkthaftungsgesetz).
This Agreement and any disputes or claims (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Austria, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than Austria. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through the following escalated process:
a. First, through negotiations between senior executives of the Parties who have the authority to settle the dispute within thirty (30) days of a written 'invitation to negotiate';
b. If negotiation fails, through mediation conducted by a mediator appointed by the Vienna Chamber of Commerce (Wirtschaftskammer Wien) within sixty (60) days of the failed negotiation;
c. If mediation fails, such dispute shall be submitted to the exclusive jurisdiction of the competent courts of Vienna, Austria (specifically the Commercial Court of Vienna - Handelsgericht Wien, if its subject-matter jurisdiction is established).
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this section). Notices shall be deemed to have been duly given:
a. When received, if personally delivered or sent by courier with delivery confirmation;
b. When receipt is electronically confirmed, if transmitted by email (with a copy sent by mail if requested or for material notices like termination); or
c. On the fifth business day after posting, if sent by certified or registered mail, return receipt requested, postage prepaid.
Email for Talentir: office@talentir.com Email for Client: the email address associated with the Client's Talentir Business account
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"):
a. Acts of God;
b. Flood, fire, earthquake, epidemic, pandemic, or explosion;
c. War, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest;
d. Government order, law, or actions;
e. Embargoes or blockades in effect on or after the date of this Agreement;
f. National or regional emergency;
g. Strikes, labor stoppages or slowdowns, or other industrial disturbances (affecting third parties, not the Impacted Party's own workforce);
h. Shortage of adequate power or transportation facilities; and
i. Other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within a reasonable time of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue.
Neither Party may assign any of its rights or delegate any of its obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, Talentir may assign this Agreement in its entirety (including all rights and obligations), without consent of the Client, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business. Any purported assignment or delegation in violation of this Section shall be null and void.
This Agreement, including the commercial terms displayed in the Client's Talentir Business dashboard and any attachments or addenda explicitly incorporated by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, understandings, negotiations, and discussions, whether oral or written, of the Parties with respect to such subject matter.
No amendment to or modification of this Agreement shall be effective unless it is in writing (including electronic communication with advanced or qualified electronic signatures pursuant to the Austrian Electronic Signature Act - Signatur- und Vertrauensdienstegesetz) and signed by a duly authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
This Agreement is accepted electronically when the Client indicates its acceptance through the Platform (for example, by checking the acceptance box and creating or activating a Talentir Business account). Such electronic acceptance is made in accordance with the eIDAS Regulation and the Austrian Electronic Signature Act (Signatur- und Vertrauensdienstegesetz) and has the same legal effect as a handwritten signature. No separately executed or handwritten signature is required for this Agreement to be binding.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, such term or provision shall be replaced by a valid, legal, and enforceable provision that comes as close as possible to the economic intent of the invalid provision (geltungserhaltende Reduktion). If such replacement is not possible, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Except as expressly provided herein (e.g., indemnified parties under Section 10), this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Headings are for convenience only and do not affect interpretation. The words "include," "includes," and "including" are deemed to be followed by "without limitation." Unless the context otherwise requires, references herein to Sections and Schedules are to Sections of, and Schedules to, this Agreement.
Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Section 1 (Definitions), Section 4 (Fees and Payment - for amounts accrued), Section 5.5 (Effect of Termination), Section 6 (Intellectual Property), Section 7 (Confidentiality), Section 8 (Data Protection - for retained data), Section 9.4 (Disclaimer), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Governing Law and Dispute Resolution), and Section 13 (General Provisions).